Ancient Roman Philosophy and Seller Disclosure

In my quickly dissipating free time, I enjoy reading classical authors. I believe the ancient Greeks and Romans had many insights that remain useful today. I also drive frequently (whether to show houses or play concerts) and listen to many recorded courses and books. A few months ago I was listening to an excellent course called "Famous Romans" by J. Rufus Fears. If you're interested in the course, you can find it here. I can't recommend it highly enough.

Anyway, he was discussing Cicero and his famous work De Officiis (44 BC) where he examines the tension between morality and expediency. In one section, Cicero discusses this conflict in the context of home sales. The following passage is a dialogue between Cicero's characters Diogenes and Antipater:

Diogenes: "Suppose...that an honest man is offering a house for sale on account of certain undesirable features of which he himself is aware but which nobody else knows; suppose it is unsanitary, but has the reputation of being healthful; suppose it is not generally known that vermin are to be found in all the bedrooms; suppose, finally, that it is built of unsound timber and likely to collapse, but that no one knows about it except the owner; if the vendor does not tell the purchaser these facts but sells him the house for far more than he could reasonably have expected to get for it, I ask whether his transaction is unjust or dishonorable.

"Yes," says Antipater, "it is; for to allow a purchaser to be hasty in closing a deal and through mistake[...]is deliberately leading a man astray."

"Can you say," answers Diogenes," that he compelled you to purchase, when he did not even advise it? He advertised for sale what he did not like; you bought what you did like. If people are not considered guilty of swindling when they place upon their placards FOR SALE: A FINE VILLA, WELL BUILT, even when it is neither good nor properly built, still less guilty are they who say nothing in praise of their house. For there the purchaser may exercise his own judgment, what fraud can there be on the part of the vendor? But if, again, not all that is expressly stated has to be made good, do you think a man is bound to make good what has not been said? What, pray, would be more stupid than for a vendor to recount all the faults in the article he is offering for sale? And what would be so absurd as for an auctioneer to cry, at the owner's bidding, 'Here is an unsanitary house for sale'?

In this way, then, in certain doubtful cases moral rectitude is defended on the one side, while on the other side the case of expediency is so presented as to make it appear not only morally right to do what seems expedient, but even morally wrong not to do it. This is the contradiction that seems often to arise between the expedient and the morally right. But I must give my decision in [this case]; for I did not propound [it] merely to raise the questions, but to offer a solution.

I think, then, that it was the duty of that [seller] not to keep back the facts from the [buyer], and of this vendor of the house to deal in the same way with his purchaser. The fact is that merely holding one's peace about a thing does not constitute concealment, but concealment consists in trying for your own profit to keep others from finding out something that you know, when it is for their interest to know it. And who fails to discern what manner of concealment that is and what sort of person would be guilty of it? At all events he would be no candid or sincere or straightforward or upright or honest man, but rather one who is shifty, sly, artful, shrewd, underhand, cunning, one grown old in fraud and subtlety. Is it not inexpedient to subject oneself to all these terms of reproach and many more besides?

Sellers ask me all the time: "Do I need to mention this in the seller's disclosure?" I believe the passage above gives us a great answer: If you think you have something to gain at the buyer's expense by neglecting to mention it, then yes, you should disclose.

Additionally, the law in PA requires that a seller disclose known material defects which are things that would affect the value of the home if they were known at the time of purchase. Some examples would be a broken HVAC system, termites, a failing roof, high Radon levels, broken appliances, water damage, mold, or anything that would cause a potential buyer to reconsider the value of the property. Agents are required by law to disclose known material defects.

Admittedly, there is some moral and legal "gray area" here. It can sometimes be difficult to determine what should be disclosed. No one wants to make their home seem like a horrible dump! But, at the same time, there is a strong legal and ethical duty to ensure a buyer is aware of any known problems.

I advise my clients to err on the side of too much disclosure rather than too little. There are issues with every older home and most of the housing stock in Pittsburgh is older. Nothing surprises the professionals involved. The buyer's agent will help the buyers understand that old termite damage or some wetness in the basement isn't really such a big deal. But, if the seller conceals defects or attempts to deceive, trust is broken and a transaction can fall apart when the buyers inevitably figure out something isn't right. Pretty much everyone gets a home inspection, and the inspectors are trained to uncover problems. Also, you can be sure that if the home inspector doesn't find it, the buyers will very likely discover the problem soon after moving in. The statute of limitations for misrepresentation is four years in PA: plenty of time for the buyers to get very angry and sue.

In conclusion, take the 2,060-year-old advice of Cicero: it is both right and expedient to disclose known material defects when selling a home!

Jay Villella