Let's assume you are looking to sell your West Virginia home. Most states have clear legislation requiring home sellers like yourself to give a written disclosure report to potential buyers. This report typically identifies any physical defects in the property, from a clunky garage door to a leak in the cellar.
In West Virginia, however, there is no legislation that requires you to disclose these sorts of defects to a buyer. If, however, you use a licensed real estate agent, your agent might need to make certain disclosures to the buyer. And there could be good reasons for you to give the buyer a full disclosure report notwithstanding the lack of legislation requiring you to do so. We'll take a closer look at these issues here.
West Virginia does not have law that requires you to give a formal disclosure statement to a potential buyer of your house. West Virginia courts enforce caveat emptor clauses in purchase contracts. Under the doctrine of caveat emptor ("let the buyer beware"), judges ordinarily refuse to compensate buyers for home defects found after the purchase unless the seller did something to actively prevent the buyer from inspecting the property to find all of the defects.
If your house was built before 1978, federal law mandates that you make buyers aware of the hazard of lead in paint, pipes, and so forth. For details, see Seller Responsibility to Disclose Lead-Based Paint Hazards.
Despite the lack of legislation on disclosure and the caveat emptor doctrine, the West Virginia Real Estate Commission (WVREC) does have some relevant regulations around disclosures of property defects. The West Virginia Real Estate License Act § 30-40-19 gives WVREC the power to refuse a license for reasonable cause or to revoke, suspend, or impose other sanctions against a real estate agent who makes misrepresentations or "any false promises or representations of a character likely to influence, persuade or induce a person involved in a real estate transaction."
In plain English, this means that any licensed West Virginia real estate agent has a professional obligation to be honest with potential buyers. They may not commit any material "fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme or other device" in a situation where someone relies upon their "word, representation, or conduct."
Most agents would not want to risk liability, or the loss of their license, in order to aid in a single sale. And most likely, you will be using a licensed real estate agent to sell your property. These regulations mean that your real estate agent cannot lie for you; the agent cannot tell a potential buyer that your house is in perfect condition if, in fact, you've already mentioned to the agent that your heating system is busted.
Nothing requires the agent to perform a complete basement-to-roof investigation of your home before approaching buyers, however, nor does it require the agent (or you) to hire a professional inspector to investigate potential physical defects. The agent merely cannot make a misrepresentation in order to capture a sale.
You might think that you are lucky to live in a state that doesn't force you to reveal damaging defects about your property. However, there are some long-term benefits and protections associated with making disclosures. As a result, many West Virginia sellers proactively make the disclosures.
Your real estate agent or an attorney should be able to offer you a standard form for this. The form will likely ask you to identify the property's address, and then check "Yes," "No," or "Unknown" or "N/A" (not applicable) in response to a few dozen questions about your property. For example, you might be asked how old the home is, whether it contains hazardous materials such as asbestos, radon, or mold; whether it's structurally sound; whether there are issues with the water supply; and whether it's part of a homeowners' association.
Your answers should give potential buyers a fairly comprehensive snapshot of any known material defects with your property. The form will also give you space to explain any of your responses to those questions in greater detail.
What is the purpose of supplying a disclosure form? First, it sets clear expectations between you and the buyer. The buyer will begin to trust you because you are voluntarily admitting to problems with your home, even though doing so could lower the purchase price. The value of this trust cannot be overestimated in a complex, stressful transaction like a home sale.
Second, the disclosure prevents a buyer from later claiming that you committed fraud. Making a full and forthright disclosure helps ensure that the buyer's expectations match reality. It presents incontrovertible proof that the buyer actually knew about the property's condition before buying. The signed and dated disclosure form would serve as important evidence in your defense.