Can I Sue the Seller of My Property for Not Disclosing a Problem?

This blog contains real examples, the applicable Virginia law, and the steps buyers can take to protect a potential claim.

You close on your Virginia home and then… the house starts telling the truth. Leaks. Odors. Pests. Mystery stains that were somehow not in the “bright and airy” listing photos.

SO: Can you sue the seller for not disclosing a problem?

In Virginia, the real answer is: you win these cases when you can prove deception, not just defects.

Virginia is a caveat emptor jurisdiction, which means “Buyer Beware”, but sellers still can’t play games.

Virginia’s disclosure form is blunt: the owner “makes no representations or warranties” about condition and advises buyers to do their own due diligence (Virginia DPOR, Disclosure Form). Actual knowledge of a defect does not create a duty to disclose under the law. That’s caveat emptor. Buyers alleging fraud must prove by clear and convincing evidence (1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to him (Thompson v. Bacon, 245 Va. 107, 111, 425 S.E.2d 512, 514 (1993)).

But Virginia case law is equally blunt that active concealment and fraud override buyer beware. In Van Deusen v. Snead, 247 Va. 324, 330–31 (1994), the Supreme Court of Virginia reaffirmed that concealment by conduct is legally identical to verbal misrepresentation of material fact, and is actionable fraud when it is made intentionally to mislead prospective purchasers (quoting Allen Realty Corp. v. Holbert, 227 Va. 441, 450 (1984)).

“Concealment of a material fact by one who knows that the other party is acting under a mistaken belief may constitute actionable fraud.”

— Van Deusen v. Snead, 247 Va. 324 (1994)

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Concrete Examples Buyers Ask About (and When Buyers Actually Win)

1. Rodents / bats / moths / infestations

   Winning Scenario: when the seller knew the infestation was real and ongoing and either lied or took steps to conceal it (e.g., repeated exterminator visits, plugging entry points right before showings, hiding droppings/guano). That fits the “concealment = misrepresentation” framework (Van Deusen v. Snead, 247 Va. 324, 330–31 (1994)).

   Losing scenario: when it’s sporadic, resolved long ago, genuinely unknown, or no misrepresentation was made

2. Prior flooding → possible mold (including mold in subfloor)

   Winning Scenario: If the seller knew about flooding/water intrusion and downplayed or denied it, that’s a strong fraud fact pattern. Van Deusen uses a classic concealment illustration: painting a basement floor to hide a foundation crack is treated as a misrepresentation (Van Deusen v. Snead, 247 Va. 324, 331 (1994)).

   If, for instance, the seller didn’t know about subfloor mold but knew about the flooding, a buyer’s best argument is: the known flooding itself is the material fact that should not be hidden or misrepresented. The seller isn’t required to be a mold expert—but they can’t sanitize the story about water

3. “Slight” basement leak; seller doesn’t know the root cause (foundation crack / sealing issue)

   This is common. The legal focus is usually what the seller knew and represented, not whether they correctly diagnosed the cause.

   Winning Scenario: if seller knew about recurring seepage and falsely said “never leaks,” or took concealment steps (fresh paint, staged storage blocking cracks, etc.) (Van Deusen v. Snead, 247 Va. 324, 331–32 (1994)). Affirmative concealment allegations are sufficient to plead fraud, and caveat emptor is trumped by diversionary conduct.

   Losing Scenario: if the seller disclosed the leak accurately (“sometimes we get a little water during heavy rain”), or remained neutral about it, and the dispute is really about scope/repairs.

4. Roof leaks only in extreme weather

   Same rule: frequency matters, and so does honesty.

   Winning Scenario: if seller knew it leaked during storms and represented the roof as “fine”, “no issues”, or “newer/no leaks”, especially if there were prior patch attempts, receipts, or bucket-and-towel history. Fraud requires a knowingly false statement of material fact and reliance (Van Deusen v. Snead, 247 Va. 324, 329–32 (1994)).

   Losing Scenario: if it was a truly isolated event, repaired, and not misrepresented.

“But I had a home inspection…and they missed it.”

This happens a lot. It does not automatically kill your seller case, but it changes the landscape:

• If the defect was obvious and discoverable, the seller may argue you can’t prove reasonable reliance (Virginia courts emphasize reasonable/justifiable reliance) (Metrocall of Delaware v. Continental Cellular Corp., 246 Va. 365, 373-74 (1993)).

• You may also have a separate negligence/breach-of-contract claim against the inspector, depending on what the inspection agreement says, the standard of care, and any limitation-of-liability clause. (Inspectors often try to limit liability by contract; enforceability and facts vary.)

Practically: sometimes the best strategy is evaluating seller claims and inspector claims side-by-side.

Best Practices: How to Put Yourself in the Best Position to Win

If you’re thinking “this feels like they knew”, here’s how you build a case without making it worse:

1. Stop the bleeding, document everything. Photos/video, moisture readings, pest evidence, weather conditions, dates/times.

2. Preserve physical evidence. Don’t throw away damaged materials if they show the condition.

3. Get the right expert early. Mold assessor, structural engineer, pest professional—someone who can speak to whether the condition is consistent with “recent/unknown” vs. “known/ongoing.”

4. Pull records. Permits, prior insurance claims (if accessible), contractor invoices, HOA notices, neighborhood flooding history.

5. Do not “repair away” the proof before documenting and getting opinions.

6. Move fast on deadlines. Claims under the Disclosure Act have a one-year limitations window in certain scenarios (Va. Code § 55.1-713(C)).

Other Remedies Besides Suing

A lawsuit is not the only lever:

• Demand letter / settlement negotiation (often the fastest path)

• Mediation (sometimes required or strategically smart)

• Claims against other parties: prior contractor warranties, termite bonds, etc.

• If an agent knew: Realtors have a separate statutory duty to disclose known “material adverse facts” (Va. Code § 54.1-2131(B)).

• Insurance/home warranty: sometimes helps, but many policies exclude long-term leaks/mold (case-specific; read the policy).

How Often are These Cases Successful?

There is no clean, public statewide statistic that reliably answers “what percent of Virginia nondisclosure cases win”, because many claims settle confidentially and court filings don’t track “nondisclosure” as a neat category. What I can say confidently is:

• Claims survive and succeed most often where there is active concealment or clear false statements (the Van Deusen fact pattern).

• Courts are skeptical of “they should have told me” claims without deception (consistent with Virginia’s buyer-beware framework and limited disclosure regime).

• Recent litigation coverage shows fraudulent inducement / active concealment allegations remain a live path when properly pleaded and supported.

“The law does not protect a party who blindly relies upon another’s statements where the means of knowledge are equally available.”

— Metrocall of Delaware v. Continental Cellular Corp., 246 Va. 365 (1993)

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Disclaimer 

This article is for general informational purposes only and does not constitute legal advice. Every case depends on specific facts, documents, deadlines, and evidence. If you believe you have a claim, Phoenix S. Ayotte, Esq. of Future Counsel is here to help!

Book a consultation with Phoenix now!