Nondisclosure of Latent Defects, Fraudulent Misrepresentation, and Concealment
As a real estate buyer, you want to make sure you know as much as possible about what you're buying before you close the transaction. As a seller, you understand that you have a general obligation to disclose any known defects in the property that could make a difference to a buyer. In legal terms, you are required to disclose any issues that could have a “material effect” on the buyer's decision to buy your property.
When a parcel of real estate property turns out to have material defects that weren't disclosed to the buyer before the purchase, disputes are likely to arise.
In Colorado, sellers of residential properties are required to disclose a wide range of present and past problems that relate to many different aspects of the property and the buildings located on the property. They're also required to identify any zoning issues that would interfere with use of the property, parking or access problems, environmental matters affecting the property, and any pending litigation that could result in a lien against the property. Commercial sellers have a similar obligation.
Buyers usually learn of undisclosed defects during the property inspection required by their lender or as part of the buyer's own due diligence. In these cases, the buyer might claim the seller fraudulently misrepresented the condition of the property by intentionally concealing the defect. The buyer's first instinct may be to try to cancel the sale and get their down payment back. The seller, on the other hand, might argue that they weren't aware of the defect and didn't intend to mislead the buyer. The seller may also assert that the defect isn't “material” to the value of the property and that the sale should go forward.
Do I have a case for fraudulent concealment or fraudulent misrespresentation?
Colorado courts define fraudulent concealment this way:
(1) concealment of a material fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (3) ignorance of that fact on the part of the one from whom the fact is concealed; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages.
And, courts define fraudulent misrepresentation this way:
(1) a fraudulent misrepresentation of material fact; (2) the plaintiffs' reliance on the material representation; (3) the plaintiffs' right or justification in relying on the misrepresentation; and (4) reliance resulting in damages.
Nielson v. Scott, 53 P.3d 777, 779 (Colo. App. 2002).
We can help in these kinds of situations. Disputes can often be resolved through negotiation, for example, with a price adjustment or the seller's agreement to fix the defect before closing. Our lawyers are skilled at helping parties find solutions without going to court. If litigation does result, we'll fight aggressively for your rights in court.
Whether you're on the buyer side or seller side of this kind of situation, you deserve experienced representation. Contact us at 720-441-3328 or fill out our consultation request form to find out how we can help.
