Can You Sue a Home Seller for Undisclosed Defects in Ohio?

Any real estate buyer, in Ohio or elsewhere, knows that homes might not be perfect. Thus they typically expect the seller to warn them about known material defects in the home. That doesn't always happen, however, leading to later lawsuits. The good news is that under Ohio law, sellers are expected to disclose any material defect about which they are aware before the sale is complete; and they face possible legal liability if they don't.

If you discover a significant defect with your home following the closing, you might be able to seek recovery from the seller in court.

Reviewing the Ohio Residential Property Disclosure Form

Ohio law requires sellers to make certain explicit disclosures of home defects to potential buyers under Ohio Revised Code Section 5302.30. The seller of residential real estate is legally required to complete a form—known as the Residential Property Disclosure Form ("RPDF")—disclosing conditions and defects with the property, and provide it to a potential buyer.

As a buyer, you should make sure that your seller actually gave you a completed RPDF before you closed on the sale.

Note the bold text on the front page of the form, encouraging potential purchasers to hire their own home inspectors regardless of any disclosures made or not made by the owner. This is a reminder that you're on your own (have nothing to sue over) when it comes to matters that the seller didn't know about or that weren't covered on the form.

Reading the RPDF, you will see that the seller should have disclosed—and possibly did disclose—to you any and all known material defects with respect to many critical aspects of the home, such as water and sewer systems, electrical systems, structural support, code violations, and so forth. Minor issues, such as loose doorknobs or paint scratches, do not warrant disclosure.

Read more about an Ohio seller's disclosure obligations.

What If Your Purchase Agreement Contains an "As Is" Clause?

You might have heard the phrase "caveat emptor," which is Latin for "buyer beware." This legal doctrine holds that if there are defects in the home, it is the buyer's responsibility to conduct an inspection and find them before paying the purchase price.

Ohio observes this doctrine to a limited degree, alongside the statute requiring disclosure. The warning to buyers to conduct an inspection is an obvious example of that, as is the lack of seller liability for problems the buyer could have readily observed. If, for example, the house had a huge hole in its side, and the buyer still purchased it, the buyer could not later claim that the defect was not disclosed and the seller is liable.

Some sellers try to include the "caveat emptor" concept as a clause in the purchase agreement for the home, sometimes in the form of an "as is" clause. This essentially states that the buyer takes the home as it currently exists, without any expectations or promises by the seller about its quality.

Unfortunately for sellers, Ohio courts frown upon the use of "as is" clauses to avoid liability for the fraudulent concealment of a known defect. If, for example, the seller knew that the HVAC system was shoddy, failed to disclose the condition, and included an "as is" clause, a court might allow the buyer to go ahead and seek damages against the seller.

What If the Seller Failed to Disclose a Known Defect?

Ohio sellers can be held liable 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, the buyer who discovers this can potentially sue.

For the buyer, the legal challenge will be showing that the seller in fact knew about the existence of the defect. A major defect like a flooding basement might be relatively easy to show the seller's 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.

A more minor or hidden defect, like a crack in the foundation that was hidden behind some structure, clogged sewer pipes, or termites borrowing deep into a wall or attic space, might be more difficult to prove the seller's knowledge of. Still, it is not necessarily impossible, if you can dig up evidence that the seller brought out repair people who noticed the problem, for example.

Also, if the seller took steps to hide a problem (such as plastering over a spot where termites punched through), that could provide damning evidence; enough to add a claim of fraud to your lawsuit.