Should I get my deposit returned when I cancel a sales contract due to nondisclosure?

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Should I get my deposit returned when I cancel a sales contract due to nondisclosure?

The seller failed to disclose the fact that the home had a recent 17K claim for
water damage and mold remediation. I signed a cancellation document after this
discovery. The seller refuses to cancel the sale and return my deposit.
What are my options? I tried to resolve it with the buyer, but their agent will
not send my letter to them. She says I owe her a commission and payment for her
hourly wages. My agent abandoned us, because she was angry about losing her
commission. I feel we are right in backing out of this sale, due to the seller
lying on the disclosure to cover up this severe water damage claim.
Do I need to get a lawyer to sue them for my monetary damages and deposit?

Asked on January 2, 2019 under Real Estate Law, Florida

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

A failure to disclose an existing or serious past problem can be fraud, and fraud can enable you to void (undo) a contract without any penalty--i.e. while getting your depsot back. A past problem would have to be one that still has some current ramification or impact, such as showing that there is a continuing vulnerability to flooding or unaddressed structural damage--a 100% resolved past problem, however, is no longer "material" or relevant and therefore its nondisclosure would not be fraud. Examples:
The water claim was due to a roof leak: that could show that the roof has a tendency to leak and so would be material and relevant.
But if the water claim was because someone started drawing a bath, got distracted by a phone call and let the tub overflow, that is a nonrepeating event and once resolved is no longer material or relevant.
If the claim was one that could show some continuing issue or concern, etc., then the nondisclosure could well be fraud and you could, if necessary, sue on that basis to void the agreement and get your money back.


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