Thank you. No, there was no agent involved. So, I will drop the "other arguments" and would like to test concealment/fraud theory. I will also assume, based on what you said, that pursuant to Civil Code 1102.2(j) Government has "lesser" level of burden to provide certain disclosures and is exempt form giving "Transfer Disclosure Statement" but common law imposed obligations remains?
A: Yes. Calemine v. Samuelson (2009) 171 Cal.App.4th 153 (A real estate vendor has both a common law and statutory duty of disclosure to the purchaser.)
I also know that Waiver Of Statutory Disclosures Is Prohibited By Law.
A: You must cite the legal authority for your statements or I must give them no weight in my deliberations.
If there was some other material defect in the property, the title to the property, or other material matter that would affect the buyer’s decision, the delivery of the disclosure statement would not relieve the seller or the seller’s agent from the duty to disclose such other material matters. Civ. Code, §1102.8. - Correct?
A: See above. But, understand that the duty to disclose implies that proof of seller's knowledge of the defect exists. No proof means you lose, because seller is going to deny that there was any failure to disclose that cannot be proved via objective evidence.
The above "Government related subsection" does not relieve government from common-law duty to disclose defects in the property or other material matters that were known or reasonably should have been known. For example, a seller or seller’s agent who obtained two experts’ reports has a duty to disclose both reports to the buyer. Godfrey v. Steinpress, 128 Cal. App. 3d 154, 172-173 (5th Dist. 1982); Gilbert v. Corlett, 171 Cal. App. 2d 116, 118 (1st Dist. 1959)
And what about the law effective since 1991, the Seismic Hazard Mapping Act, which requires disclosure of real estate property in danger of liquefaction and landslides... and the law that went in effect in 1990 to require the seller to disclose any knowledge of any substance, material, or product on the property that could be an environmental hazard, and Statutory Lead Base Paint or any other statutorily required disclosures after the buyer has signed the Purchase Agreement, which commonly triggers a cancellation period of three (3) days from personal receipt or five (5) days if delivery is by mail?
A: If the code doesn't expressly except government, then government is liable under the law. Check the code.
As I understand "The seller or seller’s agent is also obligated to conduct a reasonably competent, visual inspection of accessible areas. They must disclose any visual signs that may indicate the presence of any hazard or defect." - ( On the sidelines... not having this disclosures when purchasing the property will, as I understand it, give buyer right to seek damages for all costs of repairs after the defects are discovered).
A: Only a real estate agent is required to conduct a visual inspection. The seller is not so required. Even if seller were required to inspect, the Civil Code 1102.2(j) waives government from the inspection provisions of the article, and the common law does not require a visual inspection. It only requires that seller disclose what seller knows about the property.
There also remains a common-law duty, that a party must disclose all material facts known to the seller and the seller’s agent that are not within the reach or observation of the buyer, and this applies to the sale of any type of property, including commercial property. Miller & Starr, California Real Estate, (3d), §§1:140 to 1:145.Can absence of this be used to void contract and entitle me to restitution and claim for specific performance?
A: Your claim must be that the seller misrepresented the property to you before you signed the contract, and thereby fraudulently induced your liability for the $1,000 penalty, if you could not perform timely. Your only recourse would be rescission and the return of your $1,000. I do not see how you could affirm the agreement, and thereby force a transfer to you, unless, your failure to perform was due to your discovery of facts about the property which the seller knew of and failed to disclose. You state that your failure to perform was due to your being out of the country, and if it were my court, that would not suffice -- because as previously mentioned, completion of a real estate transaction in the year 2013 can be accomplished from anywhere on Earith that has wireless service available.
Here, it is important to add that the section of the contract 3. Disclosures, Representations, and Warranties. (a) Specific Disclosures. Property is being sold in" AS IS" condition. (b) Representations and Warranties. Seller makes the following representations and warranties: (1) Seller has the power to sell, transfer and convey all of its right, title and interest in and to the Property; and (2) Seller has not entered into and will not enter into any lease agreement or contract, or executed any grant or transfer, with respect to the use or ownership of the Property.
Section 5. Title. Seller shall convey to Purchaser all rights, title, and interest which it has in the Property. Title conveyed shall be subject to all liens and encumbrances, easements, rights of way, taxes and assessments, if any, and deed and tract covenants, conditions, and restrictions, whether recorded or not.
Should there be disclosures relative to "liens and encumbrances, easements, rights of way, taxes and assessments" that would prevent title policy form being issued. If yes, they did not provide such disclosures. As stated above, it has been determined by to Escrow that a long term lease was clouding the title and there was also some liens.
A: I see nothing in the contract terms which requires seller to affirmatively provide a title report or guarantee to buyer. The only promisee made is that seller can transfer its interests (which is illusory, because seller's interests may be nothing at all); and that seller agrees not to lease or sell the property to a third party during the pendency of the transaction.
If the title was clean I would have closed the transaction by August 10, 2012. Yet, the delay occurred when the title insurance would not issue. While waiting title to be "cleaned" and issues resolved, an unforeseen event occurred that took me out of position to close. IIn a sense, failure to disclose has prejudiced me.
A: Again, if you can show that seller knew title was clouded and induced you into the contract knowing that it would not be reasonably possible for you to resolve these issues prior to closing, then that could be a fraudulent inducement, which could be used to force the transfer of the property. Otherwise, the best you will do is get your $1,000 back.
I need to say that we had a discussions for me to deposit another $3,000.00 for County to hold the closing of sale until May 30, 2013 but this did not happen.
A: Then, it's irrelevant. It's also inadmissible into evidence to show liability, under Evid. Code 1152.
[Different law may apply for the dwelling consisting of more than 4 units, which this property is. The NHD Form is required to be used to make the Six Natural Hazard Zone Disclosures (Earthquake Fault Zone, Seismic Hazard Zone, State Fire Responsibility Areas, Very High Fire Severity Zones, Flood Zone A And Inundation Zones) only on 1-4 unit residential property. However, the disclosures are usually required (even if a form is not required) in all real property transactions, i.e., residential, commercial, industrial and agricultural.]
A: California law is strictly construed where the legislature has evidenced its intent in unmistakable terms. You will not be able to fudge this, which means that the other nondisclosure issues will be resolved against you.
The sole question remains as to what the seller knew about the property in advance, that was not reasonably related to you prior to entering into the contract as a means of inducing your detrimental reliance. If the seller's knowledge could be proved to be material (e.g., title defects), and it was obvious that no reasonable person would have been able to complete the transaction by the closing date, then that would be a fraudulent inducement, and you could have damages in reliance upon what you supposed to receive. Otherwise, you are going to lose (in my humble opinion).
Hope this helps.