You’ve moved into a beautiful new home in the Nutmeg State. After an extensive search and a long negotiation, you’ve finally settled your family into the property. As the summer weather heats up, you go to turn on the central air conditioning system. You hear a whir, and then a crackle, and then silence. No cold air. You hire a mechanic who tells you that the HVAC system is totally unworkable and in need of extensive repair. You and your family sit sweating in the living room, unhappy with this expensive news.
No homebuyer wants this sort of surprise; an undisclosed defect that pops up after the closing. On both a financial and emotional level, you would be understandably unhappy if the seller knew about these issues, but never told you about them before the sale. What remedy does Connecticut law give you if you discover that the seller failed to make such disclosures?
Connecticut requires that a home seller give the buyer written disclosures regarding the home and property's condition before the purchase contract is signed. Specifically, Connecticut General Statutes § 20-327b requires that sellers make certain disclosures to you as a potential buyer. A specific form written by Connecticut’s Department of Consumer Protection should have been given to you before you signed the purchase contract for your home. (If your seller did not give you this form, then the law requires that you should have been credited $300 at the time of closing.)
If you discover a defect in your home after the sale has closed, you should dig that seller disclosure form out of your closet. As you will recall after glancing at the form, it contains 36 questions that required the seller to state whether or not he or she knew of any existing defects with respect to specific areas. The laundry list of questions range from the condition of the roof to the condition of the plumbing.
Importantly, the form requires Connecticut sellers to disclose only issues with the property “[t]o the extent of the Seller(s)’ knowledge.” As the form itself states, the statute requires the seller to tell you only what he or she knows; the seller was under no affirmative duty to hire an electrician or other contractor to ensure that your air conditioning worked before submitting the form to you, nor a general inspector to give the house a going-over.
If the seller simply didn’t know about an issue, he or she was under no obligation to investigate it before the sale. Moreover, in reality, a seller could always say that particular conditions are “Unknown” even if he or she actually does have some sense or memory that there could be a defect.
In reviewing the form that your seller gave you, take note of whether the seller made any disclosures with respect to the issues you are now experiencing. Continuing with our example of a busted HVAC system, take a look at item number 10. That question asks the seller to state “Yes”, “No”, or “Unknown” if there are any problems affecting the air conditioning system.
If the seller answered “Yes,” then unfortunately, you would have been on notice of any potential problems with the air conditioning system. A court would likely find that you had sufficient information to know that you should have hired your own inspector, prior to actually buying the house, to inform you of the costs of repairing it. Sometimes, buyers are disappointed to discover that the disclosure was made, but that they didn’t pay close enough attention to the form.
If the seller answered “Unknown,” then similarly, you should have known that the seller was making absolutely no representations about the quality of the HVAC system. It was your responsibility to investigate the issue prior to buying the home.
If the seller answered “No,” meaning that he or she claimed no knowledge of any issues with the HVAC system, this may seem somewhat unbelievable, particularly if the defect is significant and the seller lived in the home for a long period of time. It seems unlikely that the seller would have no idea that the air conditioning system did not work; or, for example, that the roof had a large hole, or that the basement floods in the rain.
In these situations, you might be dealing with a material misrepresentation that could give rise to legal liability for the seller.
If you discover a significant defect with your Connecticut home following the closing, and your seller claimed, on the disclosure form, to have no knowledge of it, you might be able to seek recovery in court. Most likely these claims would be filed in the Connecticut Superior Court, in the county where you live. Your causes of action (the claims contained in a lawsuit) might include, for example, breach of contract, breach of the duty of good faith, or fraud.
Connecticut sellers can be held liable under the statute for failing to disclose a material defect. For example, if a seller knew that whenever it rains, the basement quickly floods, but failed to disclose this information by marking “No” on the form, you might have a good chance of succeeding in court—or at least obtaining a favorable settlement.
As the homebuyer, your biggest legal hurdle will be showing that the seller in fact knew about the existence of the defect. Remember, the seller was required to disclose only defects about which he or she had actual knowledge. Major defects, for example those involving moisture incursion or flooding, might be easy to show the seller’s prior knowledge of, based on evidence of past flooding, records from repair people who visited the house at the request of the previous owner, and so on. These records would likely come out during discovery—the process of exchanging information during a civil lawsuit.
A more minor or hidden defect, like an air conditioning system that works sometimes, but not always, might be more difficult to prove the seller’s knowledge of.
Remember, evidence is crucial in establishing knowledge. Be sure to take photographs and gather any relevant forms of evidence as soon as possible. These will help a lawyer evaluate the strength of your case and may ultimately serve as proof in court.