Selling a Virginia Home: What Are My Disclosure Obligations?

If you are thinking about selling a home in Virginia, you might 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? The ghost rumored to live in the attic? Although federal law requires some basic disclosures across the U.S., Virginia law does not require sellers to disclose much information about their property at all, as described below.

Virginia's Law on Real Estate Disclosures Puts Most Responsibility on Home Buyers

If you were selling a home in another state, you would likely be required to provide the buyer with a slew of information 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 real estate sellers 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.

Yes, Virginia Has a Real Estate Disclosure Form (But With Few Actual Disclosures Required)

The Virginia Residential Property Disclosure Act (found in the Code of Virginia § § 55-1-700 and following) governs the information home sellers must disclose to prospective buyers on 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.)

It applies not only to traditional home sales contracts, but to real estate exchanges, installment land sales contracts, and leases with option to buy.

When you look the standard 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, or "makes no representation" about various issues concerning:

• the condition of the property or its improvements
• adjacent property parcels
• whether historic district ordinances affect the property
• whether the property is protected under the Chesapeake Bay Preservation Act
• the presence of nearby registered sexual offenders
• whether the property is in a dam break inundation zone
• the presence of any wastewater system on the property
• any right to install or use solar energy collection devices on the property
• whether the property is located in one or more special flood hazard areas
• whether the property is subject to one or more conservation or other easements
• whether the property is subject to a community development authority
• whether the property is located on or near deposits of marine clays
• whether the property is located in a radon zone
• the existence of defective drywall on the property
• whether the property contains lead pipes or plumbing, and
• the condition or regulatory status of any impounding structure or dam on the property.

Basically, the form provides notice to buyers that it is up to them to inspect and investigate the property on their own. But there are specific situations in which Virginia home sellers must prepare written disclosures, as discussed next.

Limited Issues That Home Sellers in Virginia Must Actually Disclose to Buyers

Under certain circumstances, you will need to actually provide a disclosure to prospective home buyers about a particular issue, and fill out a brief form accordingly. These include:

• Septic Waiver Disclosure Form, in accordance with Code of Virginia § 32.1-164.1:1.
• Military Air Installation Disclosure Form, in accordance with Code of Virginia § 55.1-704.
• Property Previously Used for Methamphetamine Manufacture Disclosure Form, in accordance with Code of Virginia § 55.1-708.
• Building Code Enforcement Action/Zoning Ordinance Violation Disclosure Form, in accordance with Code of Virginia § 55.1-706.
• Pending legal actions against the property, as per Code of Virginia § 55.1-706.1.
• Disclosure Statement for Certain New Dwellings, (if you're the builder) in accordance with Code of Virginia § 55-702.B.
• Privately Owned Stormwater Management Facility Disclosure Form, in accordance with Code of Virginia § 55.1-708.1.
• Disclosure Statement for Residential Property With Repetitive Risk Loss (namely flood risks, in which the National Flood Insurance Program paid two or more claims of over $1,000 within any rolling 10-year period, since 1978). (Code of Virginia § 55.1-708.2.)

Exceptions, or Which Home Sellers Don't Need to Fill Out Virginia's Disclosure Statements

There are exceptions where no disclosure statement is required, including in sales or transfers between co-owners or between blood relatives or divorcing spouses, or in certain tax, bankruptcy, trust, and foreclosure sales. (See Code of Virginia § 55.1-702.)

Timing for Making Disclosures to Virginia Home Buyers

You, as the seller, must provide your signed disclosures to the buyer before accepting the purchase offer and signing onto a binding contract. If a seller fails to do this, the buyer may void the contract within a matter of days of receiving the disclosure. (For details about the timing, see Code of Virginia § 55-1-709.)

You can expect that any savvy buyer will read your real estate disclosure 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.

Also bear in mind that if, prior to the closing, anything happens that changes the information given in the disclosures, you'll be required to disclose that to the buyers, as well. (See Code of Virginia § 55-1-711.)

Federal Lead Disclosure Requirements

Beyond Virginia's legal requirements, real property sellers must also comply with 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.

Legal Risks for Virginia Property Sellers Who Attempt to Hide Information About the Home's Condition

Even though its seller's disclosure obligations are minimal, Virginia law does set standards governing a seller's behavior. Any intentional or willful representation regarding the condition of the property being sold could subject you to legal liability. (Code of Virginia § 55.1-713.) The court could award actual damages, such as for the cost of repairs.

Thus a seller who knows about a problem should not say or do anything to distract the buyer from finding the problem, and should not cover up any known defects. The seller must answer honestly any questions from a buyer about a potential problem with the property. So, 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.

Further Help

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.