Do I Have A Failure To Disclose Case

Do I Have A Failure To Disclose Case - San Diego Real Estate Law

Do I have a valid failure to disclose case here in San Diego or anywhere in California?  People have ample opportunity in this day and age to sell belongings and assets which are no longer of value to them. We post our old couches, electronics and fashion on a myriad of online sites while hoping to raise some money for another use.  We polish up our old cars and change out the oil and work to get the maximum return in this unique car marketplace.

However, houses and commercial properties are a different thing entirely. It’s a property, a home, and a life. So when it comes to buying or selling real estate and it is discovered that there are some unmentioned or unnoticed issues, who will take legal and financial responsibility in a failure to disclose case relating to real estate?

Disclosing Property Defects

Property defects vary from cracked foundations to improvements which do not meet present building codes.  They can include defective materials or other hidden defects such as termite infestations. It’s the duty of the seller to properly disclose any known structural issues, design defects, defective or substandard materials, poor workmanship, and even issues such as drainage or soil issues associated with real property listed for sale.  The failure to do so opens the sellers to significant liability for financial damages and other forms of legal recourse, including recission.

Sellers are required to complete and provide the TDS (Transfer Disclosure Statement) form here in California.  If all issues are clearly disclosed on the TDS, there should be no basis for a failure to disclose case.  The information provided on the TDS should include, but is not limited to any problems with the roof or major systems within the property, structural issues or recent repairs, known easements or encroachments, grading or flooding issues, issues associated with the neighborhood including unusual noise or even traffic, as well as a report of any deaths that have occurred in or on the property in the past three years.

The failure to disclose known defects on the TDS opens a seller up to substantial risk for litigation and liability.

The Buyer’s Have a Responsibility to Exercise Reasonable Diligence

It is important to note that a failure to disclose case here in San Diego or anywhere in California isn’t just based upon the actions of the seller.  The buyer has a responsibility under California law to exercise “reasonable diligence” before purchasing California real estate.  This is often accomplished with the assistance of a thorough home inspection, but should include comprehensive examination of the interior and exterior of any structure(s), title review, an understanding of applicable zoning, and a thorough check for any and all forms of encumbrance or claims against the property.   The buyer will only retain their rights to pursue a property defect action if they have exercised reasonable diligence prior to purchase.

Dan Watkins Founding Partner of the Watkins FirmPro-Tip: “So where is that fine line between ‘you knew about this,’ versus, ‘okay, maybe you really didn’t know about this, but we have a problem.’ Let’s talk about carpet and big old cracks in the concrete. We live on clay soil. This is desert and clay. So, that concrete cracks, clay is expansive, and your thickest most reinforced concrete is no match for expanding clay. It’s brutal.

Let’s talk about slope creep. They have a lot of slopes, a lot of not clay environments where you have just sand and dirt, or the bluffs that are falling off due to erosion. All those things can cause a crack in your slab that needs support, but it’s hidden by carpet and furniture and all kinds of things. And usually there’s been evidence of repair and somebody had to repair it and it’s covered up. So yeah, they have big trucks with concrete pumpers that go in there and try to reinforce an engineering and huge bills for a crack slab. That’s a bad situation right there.

There’s also the risk of mold. We learn more and more every year about these studies on mold. And it seems like none of it comes back as, ‘mold’s good for you!’ You see these poor kids going to the emergency room and they’ve got these flesh eating viruses , and they’ve lived in a mold filled house. That goes for commercial landlord tenants and residential landlord tenants and homeowners and everything. Sometimes it’s related to a crack in the slab.

So on top of that, we’ve had litigation in construction defects in San Diego County for 50 years. Construction defect litigation was invented here. As a result, our construction improved. And everyone would think that’s great. They are making houses better and better. Yes., and no. What happened when they made them really good to keep the moisture out? It kept the moisture in.  So you get any kind of mold, it becomes like a Petri dish. And so now they have problems with ventilation and you name it, they’ve got problems. And when you buy a house, you want to know that you haven’t been ripped off. And when you sell a house, you want to make sure that you disclosed all you knew. That’s the key.” – Dan Watkins, Founding Partner

Whether you are a buyer or seller, if there are questions about a failure to disclose case here in San Diego, or anywhere in California it is important to hire an experienced San Diego real estate lawyer from the Watkins Firm to protect your interests.  Ask about our more than four decades of experience in these cases and how we can help to protect your interests.

We invite you to review our podcast Episode 43 – Real Estate Disputes as well as the strong recommendations of our clients and contact the Watkins Firm or call 858-535-1511 for a complimentary consultation today.