Failed by seller disclosure

Q: I bought a property in Florida about two years ago. Apparently, there were lots of pending problems with the property that the seller did not disclose. I've had to pay heavy assessments, and think that it's only fair to hold the seller accountable for the lack of disclosure at the time of purchase. I'm trying to decide how to proceed on that, but am interested to know what you think I could have done differently.

A: When listing agents work with sellers, they often say, "disclose, disclose, disclose." With buyers, the mantra is different: diligence, diligence, diligence.

Of course, every buyer is absolutely, 100 percent entitled to know any "material" information about the property that the seller knows, or should know, in time to make an informed decision whether to proceed with the purchase of a property. By "material," we in the industry mean information that would be important to the decision-making of a hypothetical, reasonable buyer. That means that the criteria for determining whether any given fact or information is disclosed to a buyer are: (a) totally subjective, (b) based on a "hypothetical" buyer, and (c) decided by the seller.

Now, I'm not one who thinks most sellers are out to get buyers, but I do think they're often mentally "over" the property, so to speak. Other times, they are so habituated to something a buyer would see as a defect that they legitimately forget to disclose it. In my experience, intentional omission and malicious nondisclosure is much more the exception than the rule.

Nevertheless, as a buyer's broker, I have to do what best serves my clients' interests. And that means that I am constantly telling my buyers to (a) get clear on what information they think is important to their own decision whether to buy the place or not and, then, (b) obtain and attend their own inspections, then read and follow up on the inspection reports, until they're as satisfied as possible that they understand what they are taking on -- and are cool with it.

Buyers who rely on sellers' disclosures to the extent that they skimp on their own inspections and investigations do so at their own peril, given the subjectivity and other vagaries of seller disclosures. I don't know if that's what you did, but I often find that buyers who later have condition issues that they feel might have been prevented through more thorough disclosure could also have avoided these issues through more thorough inspections or other buyer investigations.

Does that let the seller off the hook legally? Not necessarily -- their duty is to disclose what they know or should know, based on the standards of their state. But you asked what you might have done differently, and my experience says that perhaps digging deeper during inspections, attending your inspections, or following up on them might have saved you from this turmoil. ...CONTINUED

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