Selling a Virginia Home: What Are My Disclosure Obligations?
Guidance for home sellers in Virginia concerning that state's law on disclosures to buyers about the home's condition.
If you are thinking about selling a home in Virginia, you may wonder how much, and what type of information about your property you are required to disclose to a buyer. Do you need to mention the plumbing leak that was repaired last year? Must you discuss the ghost rumored to live in the attic? Well, you may be relieved to know that although there are some basic disclosures required of sellers under federal law, Virginia law does not require sellers to disclose much information about their property at all.
If you were selling a home in another state, you would likely be required to provide the buyer with a slew of disclosures about your property and its condition. Most other states have determined that buyers need some protection when shopping for a home, and to this end, have passed laws that require the seller to fill out detailed forms describing what they know about the property's structure and features and their condition.
Virginia, however, has not joined this trend. The state of Virginia generally still goes by the old English common-law concept of “caveat emptor” (“let the buyer beware”). That basically means that while sellers can’t lie outright or actively conceal a problem — and must honestly answer prospective buyers questions when asked — they aren’t obligated to point out the home’s flaws or defects to buyers.
What’s on the Virginia Disclosure Form
The Virginia Residential Property Disclosure Act (found in Title 55, Chapter 27 of the Code of Virginia) governs the information sellers must disclose to prospective buyers. As a seller in Virginia, your basic “disclosure” requirement is to provide the buyer with a signed “Residential Property Disclosure Statement”. (This form can be found at the Virginia government’s website for the Department of Professional and Occupational Regulation.)
When you look the form over, however, you will see that it is less of a “disclosure” statement than one saying the seller is not disclosing much of anything! Basically, the form provides notice to buyers that it is up to them to inspect and investigate the property on their own.
The disclosure statement (Code of Virginia §55-519) gives notice to the buyer that the seller:
- makes no representations or warranties about the condition of the property or its attachments
- makes no representations regarding adjacent parcels
- makes no representations about whether historic district ordinances affect the property
- makes no representations regarding whether property is protected under the Chesapeake Bay Preservation Act
- makes no representations about nearby registered sexual offenders
- represents that there are no undisclosed pending actions under the Uniform Statewide Building Code, or zoning violations that have not been fixed
- makes no representations about whether the property is in a dam break inundation zone
- makes no representations regarding whether any storm water detention facilities are on the property, and
- makes no representations about the presence of any wastewater system on the property.
You, as the seller, must provide the signed disclosure form to the buyer before the purchase and sale contract takes effect. If a seller fails to do this, the buyer may void the contract, possibly even after the completion of the sale. (Code of Virginia § 55-520 (B).)
You can expect that any savvy buyer will read this form, realize you have revealed basically nothing about the property, and then require, as a contractual condition to closing the deal, the opportunity to further investigate and inspect the property. You will likely need to allow these inspections, and negotiate the details about them, and any significant need for follow-up repairs, with the buyer.
Exceptions to Who Must Fill Out the Disclosure Form
There are some exceptions where the disclosure statement is not required. No disclosure form is necessary in sales between co-owners or between relatives, or in certain tax, bankruptcy, trust, and foreclosure sales. (Code of Virginia § 55-518 (A).)
Also, a builder selling a new home for the first time is not required to complete the disclosure form. The builder-seller does, however, need to provide the buyer with written disclosure of any known defects that are in violation of the building code.
Other Disclosures Virginia Home Sellers Must Make
There are a few, limited situations where, in addition to the disclosure statement, a seller must provide the buyer with other disclosures. For example, in certain locations, the seller must give notice of any known mining operations, or mines, shafts, or pits affecting the property. (Code of Virginia § 55-518 (B).)
Also, a specific disclosure is required if the property has a septic system needing repair or maintenance and the seller has a waiver from the State Board of Health allowing the seller to keep using the septic. The seller must inform the buyer that the waiver will not apply to the buyer, and that upon the sale of the property the septic system will need to be repaired before it can be used. (Code of Virginia §32.1-164.1:1.)
Additionally, if the home is near a military air base, the seller must inform the buyer whether it is in a noise zone or accident potential zone (Code of Virginia §55-519.1).
Also, if you know that the house contains defective drywall, you must disclose this in writing to the buyer. (Code of Virginia §55-519.2.) Virginia has created standard disclosure forms for the septic, military air base and drywall issues.
Prohibitions Placed Upon on Virginia Home Sellers
Even though the seller’s disclosure obligations are minimal, Virginia law does have some standards governing a seller’s behavior. For example, a seller who knows about a problem may not say or do anything to distract the buyer from finding the problem.
Also, a seller may not cover up a known defect. The seller must also answer honestly any questions from a buyer about a potential problem with the property. So, this would suggest that if you are trying to sell a home with a large hole in the wall, it would be a bad idea to super-glue a poster over the hole to hide it from a prospective buyer, or deny that the hole exists if the buyer specifically asks about it.
Federal Disclosure Requirements
Beyond the Virginia law requirements, sellers must also comply with the disclosure rules under federal law. The main ones relate to lead-based paint. If you are selling a home that was built prior to 1978, you must disclose any known lead-based paint hazards in the home. (The federal lead disclosure requirements are found at 42 U.S.C.A. §§ 4851-56.).
You must give an EPA-approved informational pamphlet to buyers, along with any existing reports relating to lead in the home. Additionally, you must give buyers an option to conduct a lead-based paint inspection or assessment, and include specific warning language relating to lead-based paint hazards in the purchase and sale agreement.
You now know that as a home seller in Virginia, you are not required by law to reveal the activities of that ghost in the attic (unless asked!). However, there are often many complexities involved in home sales, and you will be best served by consulting a professional in your area before selling your home. You can get further information about what is required of you when selling a home in Virginia from your local attorney or real estate professional.