Virginia Law-Inspections and other Disclosures
Property Condition Disclosure Act
On July 1, 1993, Virginia made the Residential Property Condition Disclosure Act mandatory. The law applies to all non-exempt residential real property consisting of 1-4 dwelling units. Exempt transfers are those pursuant to court order such as estates, foreclosures, bankruptcies, etc. New homes have special requirements. Please consult an attorney if you are unsure about what applies in your case.
The law makes it mandatory that a seller provide either a disclaimer or disclosure statement to a purchaser no later than contract presentation. A disclaimer is a statement that the seller makes no representations or warranties as to the condition of the property, except as otherwise provided in the purchase contract. A disclosure statement discloses defects in the condition of the property actually known by the seller. Should the seller or seller's agent fail to provide one of the above to the buyer before the contract is ratified, then the buyer could cancel the sales contract by sending written notice to the seller right up to the date of settlement.
Because the seller could be held monetarily liable to the buyer for an incorrect answer on the disclosure statement for up to a year after settlement, a lot of sellers opt to provide a disclaimer statement with a further recommendation that a buyer obtain a professional home inspection. In these cases, the sellers are not trying to hide anything, they're just not qualified to answer all the questions on the disclosure statement.
There is a lot of controversy regarding this law between Realtors and real estate attorneys. If you desire a complete copy of the seller and buyer rights and obligations under the Act,
Septic and Well Inspections
In Virginia, if the seller is not on public water and sewer, the seller is required to have an inspection of these items (at the seller's cost) by a professional. In Fairfax County, the inspection is done by the County's Health Department, Division of Environmental Health. In outlying areas, private companies may do these inspections. The report is provided to the buyer at settlement.
Termite Inspections
Also, in Virginia, the seller (at his cost) must have a termite inspection within 30 days of settlement. Should termites be discovered anywhere on the property, the seller must have them treated (again, at his cost). This report is provided to the buyer at settlement.
Homeowners' Associations and Condominiums/Cooperatives
Virginia law requires that sellers whose properties are either a condominium, cooperative, or have a homeowners association provide to the buyers within 14 days after ratification of the contract all documents (by-laws, covenants, resolutions, amendments, restrictions, rules, regulations, statement of financial assets/liabilities, etc.) of said association. The buyer then has 3 days to review the documents and remove the contingency or should the buyer discover something within the documents that he can't live with, he may
Jurisdictions in the Metropolitan Washington area, buyers and sellers of real estate using the services of a professional real estate agent are required to receive certain disclosures from their agent. The jurisdictions treat most disclosure issues similarly, though not identically. The order of the following items is arbitrary, and should not be interpreted by any reader as a reflection of the importance I place on a topic most of interest to them. In examples below, masculine and feminine, singular and plural, are used interchangeably for example purposes only.
Discrimination
In all jurisdictions, real estate agents cannot discriminate on grounds of race, creed, national origin, gender, nor based on most other criteria one can think of. The rule agents go by is, if the buyer is ready, willing, and able, the agent must assist regardless of the appearance, background, or beliefs of the buyer.
Home Inspections
The buyer has a right to employ a professional home inspector to examine the home as a contingency to any purchase offer. As far as I am concerned, the buyer should ALWAYS have a professional home inspection. Keep in mind though that no home is perfect, and no inspector is all-knowing. Also, some inspectors simply have different professional interpretations of the same home issues. While not often the case, I have seen inspectors flag "problems" that are simply not problems at all.
A good inspector not only looks for problems, points them out and explains them. They will also provide pointers to good home maintenance so the buyer will have a guide to getting the most from their investment.
Lead-Based Paint
Lead-based paint has been determined by the Federal government to be a potential health hazard, particularly to young children. Lead-based paint has been linked to lead poisoning and to learning abnormalities, among other conditions and illnesses.
Lead-based paint was banned in 1978, and its use was curtailed in the marketplace some time before that; manufacturers and users had notice of the impending ban. However, effective December 6, 1996, a home built in 1978 or before is designated by the Federal government as "target housing."
Buyers must receive a booklet from the US EPA describing lead-based paint hazards, and have an opportunity to make their purchase offer for their home contingent on the inspection is at purchaser's expense. However, a seller is not required to accept the offer with the contingency. The seller may elect to wait for a purchaser to waive a lead-based paint inspection. A seller who allows a lead-based paint inspection and fails the test must disclose the test failure to any future buyer.
It is important to note that the lead-based paint inspection is NOT the same as a professional home inspection, nor the same as a radon inspection, common inspection contingencies in our area. There are three different levels of lead-based paint inspection. In non- technical terms as they affect a sale, they may be termed most disruptive, least disruptive, and moderately disruptive. A purchaser who desires a disruptive inspection may be asked to agree to restore any damage to the property as a result of the test.
To minimize lead-based paint inspection issues, a seller should most seriously consider painting their home before putting it on the market, including but not limited to the paintable areas of interior walls, ceilings , and trim, exterior wood or particle board siding, exterior trim, and window areas that often are missed in pre-sale painting.
Agent and Agency Disclosure
The Realtor must disclose to buyer and seller at the earliest practicable time who they represent -- buyer, seller, lesser, lessee, and so on. An agent can represent both buyer and seller, or use a designated agent to assist in the representation and sale, provided all parties agree in writing, and subject to the laws of the particular jurisdiction.
I believe all buyers should be represented by their broker -- hence the term , buyer-broker. In our area, the commission the agent earns is usually paid by the seller on behalf of the buyer. And usually the amount of commission the agent earns is the same percentage of the sales price whether the selling agent is a buyer-broker or not. So having a buyer-broker usually costs the buyer nothing additional. In fact, buyer-brokers potentially can save the buyer lots of money.
Sellers should also be represented by their listing agent, and in fact virtually all sellers who list their homes for sale are represented by their agent. It is very important for buyers and sellers to know that technically the "agent" is the company the salesperson works for rather than the salesperson individually. So if the seller or buyer is represented by John Doe with ABC Realty, the "agent" of the seller or buyer in the legal sense is ABC Realty.
Let's say a buyer picks up the Sunday paper, sees an ad for an Open House, and stops by the see the house. The salesperson greets the buyer, shows the home, and buyer wants to buy the home. What then?
The salesperson most likely is representing the seller. This must be disclosed to the buyer. The buyer must have the right of having someone represent their interests, if they choose.
Property Condition
In Virginia, sellers of property generally must either fill out a property condition disclosure form to be made available to the homebuyer OR may fill out a disclaimer form. The disclosure form carries some post-sale risks to the seller, so many sellers choose to disclaim instead. The disclaimer form simply puts the buyer on notice that the seller is not an engineer or inspector, and that the buyer should get a professional inspection. In no case can a seller hide or fraudulently misrepresent property flaws.
When representing the buyer, if the seller is disclaiming, I often like to ask the seller to fill out the property condition disclosure as a condition for the contract. In fact, when I represent the seller, I always respect the buyer's agent more for asking for the disclosure. I know then I'm dealing with a sharp negotiating opponent. Of course, just because they ask for it doesn't mean they'll get the disclosure. It's treated like any other negotiable item in the contract.
Homeowners Associations
In the Washington Metro Area many homes are located within communities that have homeowners associations or HOAs. In fact, some homes have more than one HOA. For example, in Reston, Virginia, there is a master association with its own dues and disclosures, and then specific neighborhoods or condos usually have their own additional dues and disclosures.
The buyer must receive the appropriate disclosures in a timely fashion or the buyer may actually void the contract without penalty. Some HOA management companies or volunteer representatives can be agonizingly slow in providing the documentation. HOA documents should always be requested in a timely fashion, but a buyer should be warned that there may be issues beyond everyone's control in getting those documents to you on time.
Conflict of Interest
In some cases, real estate agents may be affiliated with companies that have property management services, loan origination services, settlement or closing services, and so on. These should be disclosed to buyers and sellers alike. ReMax Distinctive Real Estate is affiliated under a common corporate umbrella with a lending institution. To avoid even the appearance of a conflict my buyers secure their financing elsewhere.
Financing, Insurance, and Closing Services
A buyer may secure their mortgage financing, homeowners insurance, closing services, inspection services, and repair services with any company they desire. And there are dozens of choices, which is often confusing. The agent may wish to recommend three choices, and have the buyer make the selection. Many of my buyers and sellers though are quite satisfied to have me make a choice. Regardless, I do not accept compensation from these companies and individuals. My sole criteria is good service to my clients.
Paperwork
With all of these disclosures, as you can imagine, the paperwork burden is formidable. In fact, the standard Northern Virginia sales contract is six pages, not including addenda for the items discussed above. It is the agent's job to guide the client through the process. Buyers and sellers must receive copies of everything they sign, without delay.
Lawyers
Buyers and sellers may wish to be represented by a lawyer, or simply have a lawyer review papers for them. If that is the buyer or seller's desire, that is their right and they should certainly do so. I am not an attorney. I am not an accountant. I cannot give you legal and tax advice. As an experienced real estate agent in the local marketplace, the advice I give you can cover a great deal of ground, but not advice that is properly the purview of attorneys and accountants. You may wish to have me recommend a lawyer or accountant experienced and skilled in their respective areas of expertise.
