Imagine that you are looking to sell your West Virginia home. Most states have clear legislation that would require a home seller like yourself to give a written disclosure report to potential buyers. This report typically identifies any physical defects in the property, from a defective garage door to a leak in the cellar. The Mountain State--generally home to a more limited approach to government--has no such regulatory scheme.
Indeed, in West Virginia, there is no legislation that requires you to disclose these sorts of defects to a buyer. However, if you use a licensed real estate agent, your agent may need to make certain disclosures to the buyer. And there may be some good reasons for you to give the buyer a full disclosure report anyway, notwithstanding the lack of legislation requiring you to do so.
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.
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 WVREC is the state agency charged with overseeing the real estate market and licensing real estate agents. The West Virginia Real Estate License Act § 30-40-19 states that WVREC “shall have full power to refuse a license for reasonable cause or to revoke, suspend or impose any other sanction” against a real estate agent if the agent makes “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 make “any material fraud, misrepresentation, concealment, conspiracy, collusion, trick, scheme or other device whereby any other person 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.
Most likely, you are 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 told the agent that your heating system is busted. Fortunately, nothing requires the agent to perform a complete basement-to-roof investigation of your home before approaching buyers, 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 may think that you are lucky to live in a state that doesn’t force you to reveal damaging defects about your property. However, you may be surprised to learn that there are some long-term benefits and protections associated with making disclosures--and that, as a result, many West Virginia sellers proactively make the disclosures.
A generic real estate seller disclosure form is all that you need. Your real estate agent or an attorney should be able to offer you a template. The form will likely ask you to identify the property’s address, and then check “Yes,” “No,” or “Don’t Know” in response to a few dozen questions about your property. For example, you may be asked how old the home is, whether it contains asbestos, and whether you are aware of any major appliances that need to be replaced.
Your answers should give potential buyers a fairly comprehensive snapshot of any known material defects with your property. The form will likely also give you additional space to explain any of your responses to those questions in greater detail, and encourage you to attach pages if necessary.
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 the buyer from later claiming that you committed fraud. How? Imagine that you sell your Charleston home to a buyer. The buyer moves into the house, and then discovers that there is an enormous mold infestation in the basement. The cost to remediate it will be thousands of dollars. The buyer might try to sue you for fraud or breach of contract, perhaps alleging that you said the house was in perfect condition.
Even though you may have strong legal arguments against this type of lawsuit, since West Virginia does not require any specific disclosure, it would still be a headache. Making a full and forthright disclosure would ensure that the buyer’s expectations match reality. It would also present incontrovertible proof that the buyer actually knew about the condition before buying the home. The signed and dated disclosure form, therefore, would serve as important evidence in your defense.