Georgia is a buyer beware state, so does a seller have to disclose repaired defects? Home sellers in Georgia must disclose known latent or hidden defects, things that might not be discovered during a reasonable inspection of the home. A defect that’s been properly repaired is no longer a defect so technically, the home seller has no obligation to disclose it. That doesn't mean it's not a good idea to anyway.

Latent Defects Must be Disclosed

A latent defect is an issue with the property known to the seller but that might not be discovered during a reasonable inspection of the property. Examples of a latent defect might be a mold situation or sporadic water problem in areas not easily accessed. Problems with plumbing or electrical systems, environmental issues like asbestos, lead or radon in the home. In many cases, a known easement or encroachment or even pending land use changes can be considered latent defects.

Real estate agents have certain obligations as well. While a listing agent might not have the same firsthand knowledge as a seller, they cannot misrepresent the home. If asked direct questions, they must answer truthfully.

Seth Weissman, attorney at Weissman PC and general counsel for Georgia Realtors, talks about repaired defects…

Disclose, it’s the Best Policy

A properly repaired and corrected defect does not need to be disclosed. The seller disclosure forms do not ask and there is no requirement in Georgia for a seller to note repairs made provided the item is functioning as designed. However, full disclosure is often the best idea. Water control around homes is a common issue and a perfect example.

Timmy the home seller had a wet basement five years ago and had Billy Basement Repair correct the issue. Timmy doesn’t disclose this and a year after the sale, the repair fails and the basement gets soaked. While Timmy has a defensible position, the buyer might pursue remedy anyway and Timmy now has to deal with this. Might be a better move to disclose everything, share Billy’s receipt and warranty and if things go south, reference the disclosure and suggest calling Billy.

If Sellers Lie on the Disclosure

It’s naïve to think every home seller is completely transparent when it comes to disclosures. What happens if a home seller lies on the disclosure varies; every situation is different. Is it possible to definitively demonstrate that the seller intentionally deceived the buyer on the disclosure? Can it be irrefutably established that the seller knew about the problem and purposely concealed it? Did the buyer have any suspicions about potential issues but proceeded with the closing and is now pursuing legal action? Were there any efforts made to address potential concerns prior to finalizing the transaction? What is the extent of the damage?

While it might not be required, it’s hard to beat the simple advice of disclose, disclose, disclose.

Posted by Hank Miller on


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