Virginia Disclosure Obligations

Guidance for home sellers in Virginia concerning that state’s law on disclosures to buyers about the home’s condition.

If you are thinking about selling a home in Virginia, you might wonder how much, and what type of information about your property you are required to disclose to a buyer. Do you need to mention the plumbing leak that was repaired last year? The ghost rumored to live in the attic? Although federal law requires some basic disclosures across the U.S., Virginia law does not require sellers to disclose much information about their property at all.
If you were selling a home in another state, you would likely be required to provide the buyer with a slew of information about your property and its condition. Most other states have determined that buyers need some protection when shopping for a home, and to this end, have passed laws that require the seller to fill out detailed forms describing what they know about the property’s structure and features and their condition.
Virginia, however, has not joined this trend. The state of Virginia generally still goes by the old English common-law concept of “caveat emptor” (“let the buyer beware”). That basically means that while sellers can’t lie outright or actively conceal a problem—and must honestly answer prospective buyers’ questions when asked—they aren’t obligated to point out the home’s flaws or defects to buyers.

What’s on the Virginia Disclosure Form

The Virginia Residential Property Disclosure Act (found in the Code of Virginia §§ 55-1-700 et seq.) governs the information sellers must disclose to prospective buyers on a signed “Residential Property Disclosure Statement”. (This form can be found at the Virginia government’s website for the Department of Professional and Occupational Regulation.)
When you look the form over, however, you will see that it is less of a “disclosure” statement than one saying the seller is not disclosing much of anything, or “makes no representation” about various issues concerning:

  • the condition of the property or its improvements
  • adjacent property parcels
  • whether historic district ordinances affect the property
  • whether the property is protected under the Chesapeake Bay Preservation Act
  • the presence of nearby registered sexual offenders
  • whether the property is in a dam break inundation zone
  • the presence of any wastewater system on the property
  • any right to install or use solar energy collection devices on the property
  • whether the property is located in one or more special flood hazard areas
  • whether the property is subject to one or more conservation or other easements
  • whether the property is subject to a community development authority
  • whether the property is located on or near deposits of marine clays
  • whether the property is located in a radon zone
  • the existence of defective drywall on the property
  • whether the property contains lead pipes or plumbing, and
  • the condition or regulatory status of any impounding structure or dam on the property.

Basically, the form provides notice to buyers that it is up to them to inspect and investigate the property on their own.
Under certain circumstances, however, you will need to actually provide a disclosure to buyers about a particular issue, and fill out a brief form accordingly. These include:

You, as the seller, must provide your signed disclosures to the buyer before accepting the purchase offer and signing onto a binding contract. If a seller fails to do this, the buyer may void the contract within days of receiving the disclosure. (For details, see Code of Virginia § 55-1-709.)
You can expect that any savvy buyer will read this form, realize you have revealed basically nothing about the property, and then require, as a contractual condition to closing the deal, the opportunity to further investigate and inspect the property.
You will likely need to allow these inspections, and negotiate the details about them, and any significant need for follow-up repairs, with the buyer.

Exceptions to Who Must Fill Out Disclosure Statements

There are exceptions where no disclosure statement is required, including in sales between co-owners or between relatives or divorcing spouses, or in certain tax, bankruptcy, trust, and foreclosure sales. (Code of Virginia § 55.1-702.)

Prohibitions Placed Upon on Virginia Home Sellers

Even though the seller’s disclosure obligations are minimal, Virginia law does set standards governing a seller’s behavior. Any intentional or willful representation regarding the condition of the property being sold could subject you to legal liability. (Code of Virginia § 55.1-713.) The court could award actual damages, such as for the cost of repairs.
Thus a seller who knows about a problem should not say or do anything to distract the buyer from finding the problem, and should not cover up any known defects. The seller must answer honestly any questions from a buyer about a potential problem with the property. So, if you are trying to sell a home with a large hole in the wall, it would be a bad idea to super-glue a poster over the hole to hide it from a prospective buyer, or deny that the hole exists if the buyer specifically asks about it.

Federal Disclosure Requirements

Beyond the Virginia law requirements, sellers must also comply with disclosure rules under federal law. The main ones relate to lead-based paint. If you are selling a home that was built prior to 1978, you must disclose any known lead-based paint hazards in the home. (The federal lead disclosure requirements are found at 42 U.S.C.A. § § 4851-56.).
You must give an EPA-approved informational pamphlet to buyers, along with any existing reports relating to lead in the home. Additionally, you must give buyers an option to conduct a lead-based paint inspection or assessment, and include specific warning language relating to lead-based paint hazards in the purchase and sale agreement.

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