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
There’s a lot I don’t know about your situation that would make a difference in my post-hoc analysis of your transaction. Was the property a single-family residence or a condo? If it was a condo, did you buy it from the developer or from an individual seller?
Now, please don’t interpret my use of the term "inspections" too strictly. By "inspections" I mean any investigation that you, as the buyer, could do regarding the property. So, inspections could mean obtaining neighborhood crime statistics or school scores, by that definition.
More importantly for you, "inspections" could have included your review of a condominium development’s financials and homeowners association (HOA) documents, getting up to speed on special taxes or assessments that are proposed for the district, or even a trip to city hall to determine whether there are any outstanding correction notices that will pass to the buyer.
Are all of these items within the course and scope of what a normal buyer would do in a normal situation? Not necessarily. For example, I think it’d be overkill to spend hours at the city’s building permit counter doing research in the average home sale if there were no additions, possible unpermitted improvements or express seller disclosures of property problems with the city.
That said, on occasion a trip to city hall turns out to be the item that "coulda/woulda" revealed a property’s fatal flaw, even though it would have been above and beyond the call of duty given what the buyer knew at the time. Again, this doesn’t let the seller off for negligent nondisclosure, and it’s beyond the standard practice in a normal home sale, but you did ask what you might have done differently — so there is that.
You mentioned having to pay "heavy assessments," which could mean either special assessments that were voted in by area residents, or homeowners association assessments that each owner had to pay to correct those "pending problems" you mentioned.
If you are, as I suspect, referring to an HOA issue, it seems that to the extent the seller would have been aware of these things and, thus, able to disclose them, they should also have been mentioned in the HOA disclosure documents you should have received. How thoroughly did you review those documents?
This is a common area where buyers under-inspect their properties, probably due to the eye-glazing potential of the 4-inch-thick stack of number-laden documents. In California, it’s very common for a buyer to receive 200 or 300 pages of HOA disclosures before purchasing a home.
Red flags as to ongoing property issues and upcoming assessments are often contained in HOA board meeting minutes, newsletters and financial documents, sometimes years before assessments are imposed. You might reflect on whether you reviewed the HOA documents with the level of rigor and attention to detail they deserved.
The upshot is that smart buyers take more than their fair share of initiative and responsibility when it comes to investigating every aspect of their property, HOA and community. Beyond reading disclosures and paying for a basic home inspection, being meticulous about obtaining, attending, reading and following up on as many inspections and other buyer investigations as are necessary to get you fully informed about "your" future home are very effective surprise prevention strategies.
And even after all that, it does occur, on occasion, that the seller does willfully fail to disclose details, leaving you holding the bag (or the assessments, in your situation). I hope you find satisfaction on your quest for justice, and are able to move beyond these issues and enjoy your property in the very near future.
Tara-Nicholle Nelson is author of "The Savvy Woman’s Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Ask her a real estate question online or visit her Web site, www.rethinkrealestate.com.
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