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Sellers and buyers have different needs and motivations when it comes to the transfer of real property. One area which is often an issue is property condition. Sellers typically want to transfer property "as is," without warranties and with no obligation for repairs. Buyers, on the other hand, have an interest in acquiring property that is in the best possible condition for the price. They also want full disclosure of defects and needed repairs.

The Texas Real Estate Commission promulgates a Seller's Disclosure of Property Condition form for use in residential real estate transactions (Go to www.trec.state.tx.us/forms). This form (TREC Form No. OP-H revised in 2011) is designed to be filled out by the seller and attached to the One to Four Family Residential Contract which is used by agents and brokers for transactions involving single family homes. It must be given on or before the effective date of the contract. The content of the form tracks Sec. 5.008 of the Texas Property Code, which states:

5.008(a) A seller of residential real property comprising not more than one dwelling unit located in this state shall give to the purchaser of the property a written notice as prescribed by this section or a written notice substantially similar to the notice prescribed the his section which contains, at a minimum, all of the items in the notice prescribed this section.

Property Code Sec. 5.008(e) excludes the following from the requirement that a Seller´s Disclosure be provided in residential transactions:

1. Pursuant to a court order or foreclosure sale;
2. by a trustee in bankruptcy;
3. pursuant to a deed in lieu of foreclosure;
4. by a lien holder who has either purchased at a foreclosure sale or a sale pursuant to a court order or accepted a deed in lieu of foreclosure;
5. by a fiduciary in the course of an administration of a decedent’s estate, guardianship, conservatorship, or trust;
6. from one co-owner to one or more other co-owners;
7. made to a spouse or to a person or persons in the lineal line of consanguinity of one or more of the transferors;
8. between spouses incident to divorce, legal separation or a property settlement agreement;
9. to or from a governmental entity;
10. a new residence of not more than one dwelling unit that has not been occupied for residential purposes;
11. of real property where the value of any dwelling does not exceed five percent of the value of the property.

If the seller does not give the Seller´s Disclosure as required, Property Code Sec. 5.008(f) permits the buyer to "terminate the contract for any reason for any reason within seven days after receiving the notice." However, if the failure to give the notice is coupled with fraud or failure to disclose defects, then other penalties may arise pursuant to the Deceptive Trade Practices Act and the Statutory Fraud Act (see below).

For commercial transactions, the Texas Association of Realtors has a Commercial Property Condition Statement which is an optional attachment to its standard commercial contracts. Its scope is broader than the residential Seller´s Disclosure since it addresses additional issues such as wetlands, underground storage tanks, toxic waste, and the like. Although the form is optional in commercial transactions, a careful buyer should require that the seller provide it. Note that this and other TAR forms are available only to realtors.

The intent and purpose of both the residential and commercial disclosure forms is the same: to induce the seller to make full disclosure of all material conditions, circumstances, and defects. For some reason, however, the drafters of these forms have seen fit to insert a statement at the top to the effect that the contents of the form do not constitute a warranty by the seller. The TREC Seller’s Disclosure of Property Condition states:

The TAR Commercial Property Condition Statement reads:

The Seller´s Disclosure form does not in and of itself impose an ongoing duty to disclose matters that may come to the Seller´s attention after the form has been signed and delivered to the buyer. Bynum v. Prudential Residential Services, 129 S.W.3d 781,795 (Tex.App.-Houston [1st Dist.] 2004, pet denied). Although this may be strictly true as it relates to the form, it would not be wise for a seller to withhold material information that was subsequently discovered. There are too many other statutory avenues for an aggrieved buyer to pursue.

Accurately completing the Seller´s Disclosure is the responsibility of the seller. The seller´s broker does not ordinarily become liable for the seller´s wrongdoing in this regard. A broker "would have a duty to come forward only if he had any reason to believe that the seller´s disclosures were false or inaccurate, and the only way he could be held liable for [the seller´s] statement in the notice is if it were shown to be untrue." Sherman v. Elkowitz, 130 S.W.3d 316, 321 (Tex.App.-Houston [14th Dist.] 2004, no pet.).

Failure to disclose material conditions and defects is a violation of the DTPA. In Sec. 17.46(a), the statute declares:

False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division under Sections 17.47, 17.58, 17.60, and 17.61 of this code.

17.46(b)(5): representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have. . . .

17.46(b)(7): representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.

17.46(b)(10): advertising goods or services with intent not to sell them as advertised.

17.46(b)(24): failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.

Additionally, a consumer may file suit if the consumer has relied to that consumer´s detriment upon:

17.50(B)(2) breach of an express or implied warranty;

17.50(B)(2) any unconscionable action or course of action by any person.

Texas Business & Commerce Code Sec. 27.01 (the Statutory Fraud Act) is another potential pitfall for sellers who fail to make full disclosure:

Observe the language contained in Coldwell Banker Whiteside Assocs. v. Ryan Equity Partners, 181 S.W.3d 879, 888 (Tex.App. – Dallas 2006, no pet.): "A misrepresentation may consist of the concealment or nondisclosure of a material fact when there is a duty to disclose. The duty to disclose arises when one party know that the other party is ignorant of the true facts and does not have an equal opportunity to discover the truth. A fact is material if it would likely affect the conduct of a reasonable person concerning the transaction in question."

Exemplary or punitive damages are available to plaintiffs who prevail: "A plaintiff is entitled to recover exemplary damages under statutory fraud if the false representation is made with actual awareness of the falsity of the representation." Hines v. Hash, 843 S.W.2d 464 (Tex.1992).

The existence of the Statutory Fraud Act does not preclude a deceived buyer from filing suit on the grounds of common law fraud as well. In other words, the two causes of action can be pursued side-by-side. What is the difference? See Trinity Indus. v. Ashland, Inc., 53 S.W.3d 852, 867 (Tex.App. – Austin 2001, pet. Denied): "The elements of statutory fraud under Sec. 27.01 . . . are essentially identical to the elements of common law fraud except that Sec. 27.01 does not require proof of knowledge or recklessness as a prerequisite to the recovery of actual damages."

Any competent plaintiff´s attorney will include as many causes of action as possible in his lawsuit against a non-disclosing seller.

Agents and brokers who are also sellers need to be especially concerned about the consequences of failing to make full disclosure. The Real Estate License Act (Chap. 1101, Texas Occupations Code, referred to as "RELA") expressly prohibits any conduct by a licensed Texas real estate salesperson or broker that constitutes dishonest dealing, bad faith, or untrustworthiness. The language is broad. RELA is violated if:

15.(a)(3) the licensee, when selling, buying, trading, or renting real property in his own name, engaged in misrepresentation or dishonest or fraudulent action. . . .

It is important to observe that the TREC One to Four Family Residential Contract contains an optional "as is" clause, and the transaction is turned into an "as is" transaction, if the box at 7D(1) is checked.

Here is the central question: Is it lawful to transfer property without disclosing material defects if the contract states that the transaction is "as is?" In other words, does use of the words "as is" or some similar phraseology relieve the seller of the obligation to disclose? The answer (as is true in many areas of the law) is "it depends" – but probably not.

The important case in this area is Prudential Insurance Co. v. Jefferson Associated Ltd., 896 S.W.2d 156 (Tex. 1995) which upheld "as is" clauses in certain narrow circumstances. Two things are critical if an "as is" clause is to be upheld: the specific wording of the "as is" clause and whether or not the buyer obtained an inspection. Also, in evaluating an "as is" transaction, courts look at the totality of the circumstances including these two main factors. Note that if the buyers consult an attorney before agreeing to an "as is" clause then a court is more likely to find the clause enforceable. Courts, as a rule, dislike situations where the parties are unequally informed of their rights. For this reason, it is more likely that an "as is" provision will be upheld in a commercial rather than a residential transaction since commercial buyers are presumed to be more sophisticated.

In 2007, the Dallas Court of Appeals said the following with regard to "as is" transactions involving residential property: "The nature of the transaction and the totality of the circumstances surrounding the agreement must be considered . . . Where the ‘as is’ clause is an important part of the basis of the bargain, not an incidental or ‘boilerplate’ provision, and is entered into by parties of relatively equal bargaining position, a buyer´s affirmative agreement that he is not buying on the representations of the seller should be given effect. . . ." Kupchynsky v. Nardiello, 230 S.W.3d 685.

The commercial landlord-tenant case Italian Cowboy Partners, Ltd. V. The Prudential Insurance Company of America (341 S.W.3d 323 (Tex. 2011) involved the lease of a restaurant with a history of chronic sewage odor. The landlord´s manager, who had actual knowledge of the problem, fraudulently induced the tenant into a lease by orally declaring that the premises were in "perfect condition." Even though Italian Cowboy is a commercial lease case, it is likely that a similar theory of liability would be applied against a seller of residential property who made similar false statements.

The general take-away from the foregoing section is that an "as is" clause will not protect a seller in a case of willful concealment, and it will certainly be no protection in event the seller engages in fraudulent inducement.

Example? A seller knows that there is foundation settlement because of cracks in the sheetrock and floor tile. So the seller positions a picture over the wall crack and a rug over the cracked tile (willful concealment) and then goes on to tell the prospective buyer that there are no serious defects in the condition of the house (fraudulent inducement)

What if a broker or attorney has a client who is determined to sell a property "as is" and minimize any duty to disclose? In the residential context, of course, this is difficult because the Seller´s Statement of Property Condition is a required document. In commercial transactions, however, the situation is more fluid, although it should probably be acknowledged that there is no perfect solution.

The broker or attorney should advise such a client to (1) have an effective "as is" clause in both the earnest money contract and the warranty deed, and the buyer should sign the warranty deed; (2) the contract language should go further than merely stating that the transaction is "as is" – it should clearly reject any duty of disclosure on the part of the seller; and (3) neither the seller nor his broker should make any assurances or promises (oral or written) relating to property use or condition. A basic seller-oriented "as is" clause would be:

Generally speaking, "as is" transactions as a means of avoiding seller disclosure are problematic at best and should be avoided. No one, especially juries, likes a liar – whether the lie is by commission or omission. The best advice an attorney can give a seller is "disclose, disclose, disclose." If an "as is" clause is going to be included in a contract, the seller should get a real estate attorney to draft it.

Being sued is no picnic. Seller clients often ask, "Can they sue me if . . . .?" For lots of reasons that is the wrong question, since in this country anyone can sue anyone for anything and incur little or no liability for doing so. The better approach is to deter suits in the first place by being open and above-board.

Buyers confronted by a seller who insists on an "as is" clause while attempting to avoid disclosure should be suspicious. In such a situation, the best course of action for the buyer may be to walk away. Not every deal out there can or should be made. On the other hand, an "as is" clause combined with full disclosure by the seller should not be a problem so long as the buyer realizes that the he or she should get one or more thorough inspections of the property. Whenever a seller wants to include an "as is" clause in a sales contract, the buyer should respond by including a provision to the effect that such a clause does not relieve the seller of the obligation to disclose material conditions and defects. If the seller balks, the best solution (again) is to walk away.