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Disclosure laws concerning ghosts and goblins
It was a dark and stormy night in late October. Jagged lightening bolts illuminated the blood-red leaves of the great oak tree in the front yard. Deafening claps of thunder shook the windows and siding of the house. Rain pounded down. The wind howled.
Then there was silence. The wind died down, the rain stopped -- the storm had passed.
Then the screaming began.
The eerie sound originated in the attic.
John and Jane Doe huddled together under the covers in their master bedroom. They knew that for the next several hours, the poltergeist that inhabited their attic would descend to the main house, overturn tables, knock pictures from the walls and scream at them and their children, before returning to the attic and falling silent for another year. It happened every year around Halloween. They knew, also, that they could no longer endure the ghost. They had to sell their house.
Before meeting with their real estate agent, Mr. and Mrs. Doe met with me to determine whether they would be required to disclose the existence of the poltergeist to prospective purchasers.
I explained to them that if they provided a statutory disclaimer, they would not have to reveal the existence of the phantom, but if they were asked whether their house was haunted, they would have to disclose the truth.
One of my associates pointed out that Virginia law states that no cause of action arises against a seller for failure to disclose that the subject real property was the site of “an act or occurrence which had no effect on the physical structure of the real property, its physical environment, or improvements located thereon, or a homicide, felony or suicide.” Such property is also known in the law as stigmatized property.
However, the physical manifestations of the ghost, the tipping over of furniture and knocking down of pictures, were physical effects that took the haunting out of the definition of merely stigmatized property.
I advised Mr. and Mrs. Doe that it would probably be prudent to disclose the noisy spirit rather than invite a lawsuit for misrepresentation, the damages for which could be the cost of an exorcism. Besides, most people believe ghosts are surreal or imaginary phenomena, anyhow.
Happy Halloween!
H. Kent Kidwell is the senior partner at the law firm of Kidwell, Kent & Curran in Fairfax City, and president of Old Dominion Title Services, Inc. He can be reached at Woodson Square, 9695 C Main St., Fairfax, VA 22031, or e-mail him at hkkidwell@kidwellkent.com.
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