DAVID J. WILLIS ATTORNEY
Copyright © 2010. ALL RIGHTS RESERVED WORLDWIDE.
Sellers and buyers have different needs and motivations when it comes to the transfer of real property. One area which is often an issue is property condition. Sellers typically want to transfer property “as is,” without warranties and with no obligation for repairs. Buyers, on the other hand, have an interest in acquiring property that is in the best possible condition for the price. They also want full disclosure of defects and needed repairs.
The Texas Real Estate Commission promulgates a Seller’s Disclosure of Property Condition form for use in residential real estate transactions (Go to www.trec.state.tx.us/forms). This form (TREC Form No. OP-H revised in 2010) is designed to be filled out by the seller and attached to the One to Four Family Residential Contract which is used by agents and brokers for transactions involving single family homes. It must be given on or before the effective date of the contract. The content of the form tracks Sec. 5.008 of the Texas Property Code, which states:
5.008(a) A seller of residential real property comprising not more than one dwelling unit located in this state shall give to the purchaser of the property a written notice as prescribed by this section or a written notice substantially similar to the notice prescribed the his section which contains, at a minimum, all of the items in the notice prescribed this section.
The purpose of the Seller’s Disclosure is to make it clear what appliances, equipment, and features exist on the property; whether or not these items are in working condition; whether the seller knows of any defects or malfunctions in critical systems; if certain red-flag conditions like termite treatment, previous fires, or flooding have occurred; the need for repairs; and the existence of unpermitted additions, unpaid HOA fees, violations of deed restrictions, lawsuits, or any conditions that “materially affect the health or safety of an individual.” In other words, the form is thorough.
Property Code Sec. 5.008(e) excludes the following residential transactions from the requirement that a Seller’s Disclosure be provided:
- Pursuant to a court order or foreclosure sale;
- by a trustee in bankruptcy;
- pursuant to a deed in lieu of foreclosure;
- by a lien holder who has either purchased at a foreclosure sale or a sale pursuant to a court order or accepted a deed in lieu of foreclosure;
- by a fiduciary in the course of an administration of a decedent’s estate, guardianship, conservatorship, or trust;
- from one co-owner to one or more other co-owners;
- made to a spouse or to a person or persons in the lineal line of consanguinity of one or more of the transferors;
- between spouses incident to divorce, legal separation or a property settlement agreement;
- to or from a governmental entity;
- a new residence of not more than one dwelling unit that has not been occupied for residential purposes;
- of real property where the value of any dwelling does not exceed five percent of the value of the property.
If the seller does not give the Seller’s Disclosure as required, Property Code Sec. 5.008(f) permits the buyer to “terminate the contract for any reason for any reason within seven days after receiving the notice.” However, if the failure to give the notice is coupled with fraud or failure to disclose defects, then other penalties may arise pursuant to the Deceptive Trade Practices Act and the Statutory Fraud Act (see below).
For commercial transactions, the Texas Association of Realtors has a Commercial Property Condition Statement which is an optional attachment to its standard commercial contracts. Its scope is broader than the residential Seller’s Disclosure, since it addresses additional issues such as wetlands, underground storage tanks, toxic waste, and the like. Although the form is optional in commercial transactions, a careful buyer should generally require that the seller provide it.
TAR forms are available only to realtors.
The intent and purpose of both forms is the same: to induce the seller to make full disclosure of all material conditions, circumstances, and defects. For some reason, however, the drafters of these forms have seen fit to insert a statement at the top to the effect that the contents of the form do not constitute a warranty by the seller. This is entirely unsatisfactory from the buyer’s point of view. Buyers should therefore negotiate a clause which essentially strikes this non-warranty statement and makes it clear that the seller is standing behind the truth of his disclosures. Buyers should not leave a seller any wiggle-room on this issue.
Note to buyers: obtaining either disclosure form is no substitute for getting a thorough professional inspection.
Note to sellers: advising the buyer to obtain an inspection is no substitute for making full disclosure.
Ongoing Duty to Disclose
The Seller’s Disclosure form does not in and of itself impose an ongoing duty to disclose matters that may come to the Seller’s attention after the form has been signed and delivered to the buyer. Bynum v. Prudential Residential Services, 129 S.W.3d 781,795 (Tex.App.-Houston [1st Dist.] 2004, pet denied). Although this may be strictly true as it relates to the form, it would not be wise for a seller to withhold material information that was subsequently discovered. There are too many other statutory avenues for an aggrieved buyer to pursue.
Accurately completing the Seller’s Disclosure is the responsibility of the seller. The seller’s broker does not ordinarily become liable for the seller’s wrongdoing in this regard. A broker “would have a duty to come forward only if he had any reason to believe that the seller’s disclosures were false or inaccurate, and the only way he could be held liable for [the seller’s] statement in the notice is if it were shown to be untrue.” Sherman v. Elkowitz, 130 S.W.3d 316, 321 (Tex.App.-Houston [14th Dist.] 2004, no pet.).
The Deceptive Trade Practices – Consumer Protection Act (“DTPA”)
Failure to disclose material conditions and defects is a violation of the DTPA. In Sec. 17.46(a), the statute declares:
False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division under Sections 17.47, 17.58, 17.60, and 17.61 of this code.
The DTPA declares the following to be unlawful:
17.46(b)(5): representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have. . . .
17.46(b)(7): representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.
17.46(b)(10): advertising goods or services with intent not to sell them as advertised.
17.46(b)(24): failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.
The DTPA applies to real estate transactions. The cases consistently declare that real estate is a “good” within the meaning of the DTPA. See Chastain v. Koonce, 700 S.W.2d 579, 582 (Tex. 1985).
Additionally, a consumer may file suit if the consumer has relied to that consumer’s detriment upon:
17.50(B)(2) breach of an express or implied warranty;
17.50(B)(2) any unconscionable action or course of action by any person.
Statutory language does not get any broader or more potentially damaging than that. Seller beware: if you fail to disclose a material item, a jury can find that your action was “unconscionable” (an open-ended term by any definition) and award treble damages, attorney’s fees, and court costs against you.
Texas Business & Commerce Code Sec. 27.01 (the Statutory Fraud Act) is another potential pitfall for sellers who fail to make full disclosure:
(a)Fraud in a transaction involving real estate or stock in a corporation or joint stock company consists of a
- false representation of a past or existing material fact, when the false representation is
- made to a person for the purpose of inducing that person to enter into a contract; and
- relied on by that person in entering into that contract; or
- false promise to do an act, when the false promise is
- (A) material;
- (B) made with the intention of not fulfilling it;
- (C) made to a person for the purpose of inducing that person to enter into a contract; and
- (D) relied on by that person in entering into that contract.
(b) A person who makes a false representation or false promise commits the fraud described in Subsection (a) of this section and is liable to the person defrauded for actual damages.
(c) A person who makes a false representation or false promise with actual awareness of the falsity thereof commits the fraud described in Subsection (a) of this section and is liable to the person defrauded for exemplary damages. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.
(d) A person who (1) has actual awareness of the falsity of a representation or promise made by another person and (2) fails to disclose the falsity of the representation or promise to the person defrauded, and (3) benefits from the false representation or promise commits the fraud described in Subsection (a) of this section and is liable to the person defrauded for exemplary damages. Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.
(e) Any person who violates the provisions of this section shall be liable to the person defrauded for reasonable and necessary attorney’s fees, expert witness fees, costs for copies of depositions, and costs of court.
Observe the language contained in Coldwell Banker Whiteside Assocs. v. Ryan Equity Partners, 181 S.W.3d 879, 888 (Tex.App. – Dallas 2006, no pet.): “A misrepresentation may consist of the concealment or nondisclosure of a material fact when there is a duty to disclose. The duty to disclose arises when one party know that the other party is ignorant of the true facts and does not have an equal opportunity to discover the truth. A fact is material if it would likely affect the conduct of a reasonable person concerning the transaction in question.”
Exemplary or punitive damages are available to plaintiffs who prevail: “A plaintiff is entitled to recover exemplary damages under statutory fraud if the false representation is made with actual awareness of the falsity of the representation.” Hines v. Hash, 843 S.W.2d 464 (Tex.1992).
Common Law Fraud
The existence of the Statutory Fraud Act does not preclude a deceived buyer from filing suit on the grounds of common law fraud as well. In other words, the two causes of action can be pursued side-by-side. What is the difference? See Trinity Indus. v. Ashland, Inc., 53 S.W.3d 852, 867 (Tex.App. – Austin 2001, pet. Denied): “The elements of statutory fraud under Sec. 27.01 . . . are essentially identical to the elements of common law fraud except that Sec. 27.01 does not require proof of knowledge or recklessness as a prerequisite to the recovery of actual damages.”
Any competent plaintiff’s attorney will include as many causes of action as possible in his lawsuit against a non-disclosing seller.
Additional Liability for Real Estate Licensees
Agents and brokers who are also sellers need to be especially concerned about the consequences of failing to make full disclosure. The Real Estate License Act (Chap. 1101, Texas Occupations Code, referred to as “RELA”) expressly prohibits any conduct by a licensed Texas real estate salesperson or broker that constitutes dishonest dealing, bad faith, or untrustworthiness. The language is broad. RELA is violated if:
15.(a)(3) the licensee, when selling, buying, trading, or renting real property in his own name, engaged in misrepresentation or dishonest or fraudulent action. . . .
In addition to civil liability for damages, a culpable licensee may be subject to having his or her license suspended or revoked by TREC.
“As Is” Transactions
Here is the question: Is it lawful to transfer property without disclosing material defects if the contract states that the transaction is “as is?” In other words, does use of the words “as is” or some similar phraseology relieve the seller of the obligation to disclose? The answer (as is true in many areas of the law) is “It depends.”
The important case in this area is Prudential Insurance Co. v. Jefferson Associated Ltd., 896 S.W.2d 156 (Tex. 1995) which upheld “as is” clauses in certain narrow circumstances. Two things are critical if an “as is” clause is to be upheld: the specific wording of the “as is” clause and whether or not the buyer obtained an inspection. Also, in evaluating an “as is” transaction, courts look at the totality of the circumstances including these two main factors. Note that if the buyers consult an attorney before agreeing to an “as is” clause then a court is more likely to find the clause enforceable. Courts, as a rule, dislike situations where the parties are unequally informed of their rights. For this reason, it is more likely that an “as is” provision will be upheld in a commercial rather than a residential transaction since commercial buyers are presumed to be more sophisticated.
In 2007, the Dallas Court of Appeals said the following with regard to “as is” transactions involving residential property: “The nature of the transaction and the totality of the circumstances surrounding the agreement must be considered . . . Where the ‘as is’ clause is an important part of the basis of the bargain, not an incidental or ‘boilerplate’ provision, and is entered into by parties of relatively equal bargaining position, a buyer’s affirmative agreement that he is not buying on the representations of the seller should be given effect. . . .” Kupchynsky v. Nardiello, 230 S.W.3d 685.
Generally speaking, “as is” transactions as a means of avoiding seller disclosure are problematic at best and should be avoided. No one, especially juries, likes a liar – whether the lie is by commission or omission. The best advice an attorney can give a seller is “disclose, disclose, disclose.” If an “as is” clause is going to be included in a contract, the seller should get a real estate attorney to draft it.
Being sued is no picnic. Seller clients often ask, “Can they sue me if . . . .?” For lots of reasons that is the wrong question, since in this country anyone can sue anyone else for anything and incur little or no liability for doing so. The better approach is to deter suits in the first place by being open and above-board. For more information on lawsuits, go to our companion article, Litigation in Texas.
Buyers confronted by a seller who insists on an “as is” clause while attempting to avoid disclosure should be suspicious. In such a situation, the best course of action for the buyer is to walk away. Not every deal out there can or should be made. On the other hand, an “as is” clause combined with full disclosure by the seller should not be a problem so long as the buyer realizes that the he or she should get one or more thorough inspections of the property. Whenever a seller wants to include an “as is” clause in a sales contract, the buyer should respond by including a provision to the effect that such a clause does not relieve the seller of the obligation to disclose material conditions and defects. If the seller balks, the best solution (again) is to walk away.
Information in this article is proved for general educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well. Reading this article does not make you our client. This firm does not represent you unless and until it is retained and expressly agrees in writing to do so.
Copyright © 2010 by David J. Willis. David J. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his web site, http://www.LoneStarLandLaw.com.