THE VIRGINIA RESIDENTIAL PROPERTY DISCLOSURE ACT (VA CODE 55.1-700 ET SEQ) – WHAT REAL ESTATE BUYERS SHOULD KNOW.

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Contract Law, Litigation, Real Estate, Residential Purchase and Sale Contracts

on August 11th 2020

The Virginia Residential Property Disclosure act is a statutory scheme enacted by the General Assembly of Virginia that requires a seller of real estate in Virginia to “furnish to a purchaser a residential property disclosure statement for the buyer to beware of certain matters that may affect the buyer’s decision to purchase such real property” Va Code 55.1-703. The act essentially codifies the caveat emptor standard under Virginia law regarding matters within the scope of its disclosure.

This article will discuss the respective rights and remedies of buyers and sellers with respect to issues related to the VRPDA.

Applicability of the Virginia Residential Property Disclosure Act.

Under Va. Code § 55.1-701, the VRDPA applies to any transaction related to the “transfers by sale, exchange, installment land sales contract, or lease with option to buy of residential real property consisting of not less than one nor more than four dwelling units, whether or not the transaction is with the assistance of a licensed real estate broker or salesperson.” In other words, the VRDPA applies to sales, or leases with an option to buy, of residential real estate, regardless of whether a real estate broker is used.

Statute of Limitations (Virginia Code 55.1-713):

The statute of limitations for any actions concerning violations of this Act begins to run one year from the date the buyer received the applicable disclosures. In the event that the disclosures were not delivered, then the statute of limitations begins to run one year from the date of settlement. See Va Code 55.1-713(C).

What Does the VRDPA Require from Sellers of Residential Real Estate.

In every applicable real estate transaction, the seller must provide the buyer with a VRDPA disclosure cautioning the buyer to beware of certain matters regarding the contemplated sale. These requirements are codified under Virginia Code 55.1-703 (Required disclosures for buyer to beware; buyer to exercise necessary due diligence.), and exempt the seller from making any representations or warranties with respect to such matters. It is well-established in Virginia that sellers cannot be found liable for matters covered by the scope of the disclosure. Davis v. Relocation Properties Management. LLC, 53 Va. Cir. 215 (2000). In Davis, the court dismissed a breach of contract claim on demurrer because “[seller] complied with the [VRPDA] by making an appropriate disclaimer in the contract itself.” Davis, 53 Va. Cir. at 219. As a result “of the plain, clear and unambiguous language of the parties’ written Contract,” the buyer in Davis could not recover. Id at 218.

Furthermore, the VRDPA specifically cautions the buyer to “exercise whatever due diligence a particular purchaser deems necessary, including obtaining a home inspection … and a residential building energy analysis […].” This language is important because it essentially places the onus of any due diligence on the buyer in a residential real estate transaction in Virginia.

The following chart summarizes some of the primary duties of both buyers and sellers in a residential real estate transaction.

Buyers Duty to Investigate

Virginia Code 55.1-703(B)(1)-(10)

Sellers Duty to Disclose

Va Code 55.1-704; 706; 708.1

Matters related to:

· Condition of the property or improvements; or

· covenants and restrictions; or

· conveyances of mineral rights;

· conservation or easements;

· existence of defective drywall on the property,

· Information on sexual offenders in the area;

· parcels adjacent to the subject parcel, including zoning classification or permitted uses of adjacent parcels;

· whether the provisions of any historic district ordinance affect the property;

· whether the property contains any resource protection areas established in an ordinance implementing the Chesapeake Bay Preservation Act;

· if the property is within a dam inundation zone

· presence of wastewater management system

· right to install solar energy collection devices on the property

Whether property is located in any locality in which a military air installation is located…whether the subject parcel is located in a noise zone or accident potential zone

If seller has actual knowledge of

· any pending enforcement actions pursuant to the USBC that affect the safe, decent, sanitary living conditions of the property of which the seller has been notified in writing by the locality, OR

· any pending violation of the local zoning ordinance that the violator has not abated or remedied under the zoning ordinance…

· If residential property was previously used to manufacture methamphetamine and has not been cleaned up

· privately owned stormwater management facility located on such property

If you have any questions regarding this matter, please call your real estate lawyers at Fox & Moghul. We can help.