All Kansans know the expression “There’s no place like home.” But imagine that you purchase a home in the Sunflower State and find that it isn’t quite so perfect. Perhaps you discover warped floorboards, structural damage, or major appliances that don’t work. Suddenly, home is no longer looking so wonderful—and you are likely angry at the seller for not warning you about these expensive problems before the sale. If you discover undisclosed defects in your newly purchased Kansas home, what legal options do you have to recoup your loss?
Before thinking about your potential course of action, first familiarize yourself with Kansas’s laws regarding real estate transactions. Kansas has several regulations that would have required the home seller to make certain disclosures to potential buyers like yourself.
Most broadly, Kansas Stat. Ann. 58-30.106 provides that the seller or the seller’s real estate agent must disclose to the buyer in writing: (i) Any environmental hazards affecting the property; (ii) the physical condition of the property; (iii) any material defects in the property; (iv) any material defects in the title to the property; and (v) any material limitation on the seller's ability to perform under the terms of the purchase contract.
Kansas does not specifically state what areas or aspects of the property require some sort of disclosure. Separately, Kansas Stat. Ann. 58-3078a requires that the seller provide a disclosure about the presence of any radon gas—which can be cancerous—to buyers. This disclosure can be made within the purchase contract itself.
While there is no one required disclosure form, the Kansas Association of Realtors has created a standard form that generally covers the information that buyers should expect to see from the seller. This three-page form covers essentially every area of the home you can imagine, from the appliances to the HVAC system. The form also contains a number of other disclosure questions, for example about whether there are any encumbrances on legal title to the property (such as easements or boundary disputes), or any hazardous conditions (such as flood zones or asbestos).
Importantly, Kansas does not require the seller to hire an inspector or verify the information disclosed in the form. Kansas Stat. Ann. 58-30.106(2) states that sellers have “no duty to conduct an independent inspection of the property for the benefit of the [buyer].” Rather, the seller is required to disclose only defects that he or she knew about when making the disclosure. (Obviously, this language is not particularly helpful for you as the buyer, since the seller could deny knowledge of certain non-obvious problems with the home.)
If you discover a material defect in your home after the closing, you should immediately review your records to locate this form—both to see whether the seller gave it to you, and to see what was (or was not) disclosed.
In Kansas, you have several potential remedies against a seller who knowingly failed to disclose a material defect about the home.
First, Kansas Stat. Ann. 50-626, which covers “Deceptive Practices and Acts,” prohibits the use of knowingly false information to induce a buyer to make a purchase. Buyers have used this statute to litigate against sellers who misled them in their real estate disclosures.
Second, you may have a legal cause of action against the seller for breach of contract or fraud. Fraud is a common law cause of action recognized in Kansas and elsewhere that results from one party making a statement that is knowingly false to induce another party to take an action. Imagine that the seller told you that he would have all mold removed before you moved into the home. But upon moving in, you discover that he never did so. Clearly, the seller made a knowingly false statement to induce you to buy the home.
Similarly, you may have a breach of contract cause of action against the seller if the language of your contract made certain guarantees. For example, your purchase contract might specifically state that certain windows would be upgraded before the sale. If this turns out not to have happened, the seller may be in breach.
If you find these sorts of defects in your home, be sure to act with alacrity. You or your Kansas real estate attorney should write to the seller, agent, or both, stating the problem and outlining your costs. Demand letters can sometimes make a potential defendant eager to settle a dispute before it erupts into a full-blown lawsuit. If the amount of your damages (usually based on repair needs) is significant, consider a consultation with a real estate attorney.
Often, demand letters will be taken more seriously when they arrive on law firm letterhead, since it shows the potential defendant that you are strongly considering legal recourse. If not, however, you may wish to proceed with a lawsuit.