1. Seller v Listing Agent Disclosures

2. Residential Property Disclosure Act
Seller Disclosure
Residential Property Disclosure Act
Federal Lead Based Paint Disclosure
In Virginia, the seller is obligated to make certain disclosures under the Virginia Residential Property Disclosure Act, and the Federal Lead Based Paint Disclosure regulations. While the seller is limited in what they are required to affirmatively disclose – and they are not required to disclose material defects or material adverse facts – sellers cannot conceal any defects or commit fraud by lying to the potential purchaser.

3. Residential Property Disclosure Act
Property Condition; Mineral Rights
Adjacent Parcels
Historic District
Resource Protection Area (CBPA)
Sex Offenders
Dam Break Inundation Zone
The Residential Property Disclosure Act requires the seller to provide a statement that the seller is making no representations with respect to 12 items.
The condition of the property or any improvements, any covenants and restrictions, or the conveyance of mineral rights
Matters pertaining to adjacent parcels, including zoning classifications or permitted uses
Whether the property is in a historic district
Whether the property contains any resource protection areas (like the Chesapeake Bay Preservation Act)
Whether there are any registered sex offenders near by
Whether the property is in a dam break inundation zone.

4. Residential Property Disclosure Act
Stormwater Detention Facilities/Maintenance
Wastewater System/Maintenance
Solar Panels
Special Flood Hazard Areas
Conservation/Easements
Community Development Authority
7. Whether there are any stormwater detention facilities, or maintenance obligations for a storm water detention facility
8. Whether there are any wastewater systems, or maintenance obligations for wastewater systems.
9. Whether there is a right to install or use solar energy collection devices, like solar panels
10. Whether the property is in a special flood hazard area, or whether flood insurance is required
11. Whether the property is subject to any conservation or other easements
12. Whether the property is subject to a community development authority.

5. RPDA Affirmative Disclosures
Military Air Installation
Defective Drywall
Pending Building or Zoning Violations
Previously Used to Manufacture Methamphetamine
Tourism Activity Zone – Permissive
In addition to the seller form which lists 12 things that the seller is essentially not disclosing, the Virginia Residential Property Disclosure Act has four affirmative disclosures that must be made, if they apply. Each of these disclosures must be made on a form provided by the Real Estate Board.
The first is if the property is located in a locality where a military air installation is located, and the locality has designated noise zone or accident potential zone, or both, on the official zoning map.
The second is if the owner has actual knowledge of the existence of defective drywall. “Defective drywall” is defined by the law as “drywall or similar building material composed of dried gypsum-based plaster that (i) contains elemental sulfur exceeding 10 parts per million as has been found in some drywall manufactured in the People's Republic of China and imported into the United States between 2004 and 2007 and, when exposed to heat, humidity, or both, releases elevated levels of hydrogen sulfide gas into the air or (ii) has been designated by the U.S. Consumer Product Safety Commission as a product with a product defect that constitutes a substantial product hazard within the meaning of § 15 (a)(2) of the Consumer Product Safety Act (15 U.S.C. § 2064 (a)(2)).”
The third is if the owner has actual knowledge of any pending enforcement actions pursuant to the Uniform Statewide Building Code that affect the safe, decent, sanitary living conditions; or any pending violation of the local zoning ordinance.
The fourth is if the owner has actual knowledge that the property was previously used to manufacture methamphetamine, and the property was not remediated pursuant to the Virginia Department of Health guidelines.
There is a fifth, permissive – not required, disclosure, and that is for if the property is located in a designated tourism activity zone.

6. Lead Based Paint Disclosure
Built before 1978
Provide “Protect Your Family From Lead in Your Home” Pamphlet
Disclose known info on lead based paint or lead based paint hazards
Lead Disclosure Form
The Federal Residential Lead-Based Paint Hazard Reduction Act of 1992 obligates sellers of “subject property” to provide certain information to buyers. A subject property is any property built before 1978.
Sellers must provide a copy of the Protect Your Family from Lead in Your Home pamphlet; any information/reports/records the seller has on lead based paint or lead based paint hazards in the home; and a copy of the lead based paint disclosure form.

7. Agent Disclosures
“A licensee engaged by a seller shall disclose to prospective buyers all material adverse facts pertaining to the physical condition of the property which are actually known by the licensee.”
Virginia Law requires agents engaged by sellers to disclose to prospective buyers “all material adverse facts pertaining to the physical condition of the property which are actually known by the licensee.”
This is MUCH broader than the limited scope of what must be disclosed by the seller, so let’s talk about what this means.

8. Material
Something is material if it could affect the decision of a reasonable person about whether to buy.
Something is material if it could affect the decision of a reasonable person about whether to buy. What are some examples of a material item?
(Wait for answers)
Some potential responses: cost, bedrooms, location, etc.

9. Adverse Fact
Something is an adverse fact if it is negative and true. Adverse facts are not necessarily as bad as defects.
Something is an adverse fact if it is negative and true. It’s important to note that adverse facts are not necessarily as bad as defects, but all defects will be adverse facts. What are some examples of an adverse fact?
(Wait for answers)
Some potential responses: polybutylene pipes that haven’t leaked yet (leaking pipes would be a defect), asbestos tiles that have not been damaged (damaged tiles would be a defect).

10. Physical Condition Physical condition of the land & any improvements
NOT:
matters outside the boundaries of the land or relating to adjacent/nearby properties,
matters relating to governmental land use regulations, and
matters relating to highways or public streets
The law specifically states that “physical condition” does not include:
Matters outside the boundaries of the land, or relating to any adjacent or nearby properties
Matters relating to governmental land use regulations
Matters relating to highways or public streets

11. Agent Disclosures Material Adverse Fact Physical Condition
Actually Known
So let’s review the elements of what a listing agent must disclose: material adverse facts pertaining to the physical condition of the property of which they are actually aware. As we’ve already said, this is more broad than what a seller must disclose.
The law also specifies that defective drywall is a required disclosure for a listing agent.

12. Questions and Answers
My seller client told me that the roof is leaking in multiple places and the living room carpet is routinely soaked during rainstorms. Must the seller disclose this condition on the Residential Property Disclosure Statement?

13. Questions and Answers
The seller does not have to disclose this, but the listing agent most likely does.
The roof leaks and the resulting damage caused are “material adverse facts pertaining to the physical condition of the property which are actually known” by the listing agent. Therefore, the listing agent must disclose the condition to buyer agents or unrepresented buyers. However, the seller would have no legal disclosure obligation under the Residential Property Disclosure Act or on the Statement.

14. Questions and Answers
For efficiency should the listing agent disclose material adverse facts pertaining to the physical condition of the property on the Residential Property Disclosure Statement?

15. Questions and Answers
No, the Residential Property Disclosure Statement is for seller disclosures. Agents putting disclosures on this form can create confusion.
A good practice is for the listing agent to disclose material adverse facts in writing on a separate document than the Residential Property Disclosure Statement to avoid confusion about who is making the disclosure. Again, the Residential Property Disclosure Statement is a seller disclosure/disclaimer vehicle and is separate from a listing agent’s disclosure obligations.

16. Questions and Answers
Does the seller really have any disclosure obligations? Isn’t the Residential Property Disclosure Statement just a list of disclaimers?

17. Questions and Answers 12 “Disclaimers” 4 Affirmative Disclosures
Military Air Installation
Defective Drywall
Pending Zoning/Ordinance Violations
Methamphetamine
The Residential Property Disclosure Statement does contain a long list of disclaimers. However, the Residential Property Disclosure State requires sellers to make disclosures to buyers in certain situations: Military air installations, defective drywall, pending zoning/ordinance violations, and if the property was previously used to manufacture methamphetamine.