Chapter 4- Texas Deceptive Trade Practices & the Consumer Protection Act

DTPA

was enacted in 1973. The purpose of the act is to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty.

General Information and Notice to a Buyer (TAR 1506).

This form does a great job of educating buyers by pointing out problems that could occur on any property but not specifically to the areas where the buyers are looking. But still, it covers a ton of scenarios that are possible in residential real estate.

The Seller Is Responsible

It is important that real estate agents remember that sellers are still responsible under DTPA. Most lawsuits brought against real estate license holders cite violations of the DTPA. The Texas Deceptive Trade Practices-Consumer Protection Act (DTPA) allows an aggrieved consumer to hold a seller of goods and services liable for damages resulting from deceptive or unfair trade practices. In the context of real estate, the consumer is the buyer, and the seller of goods is the seller of real property.

A common defense when charged with violating the Deceptive Trade Practices Act

Is a statement from the defendant stating that they did not know and could not have known about the fact that was not disclosed to the plaintiff. Another possible defense is if the license holder could prove that the information that they gave came from another source, and that they were quoting the source in their conversation with the plaintiff. (Of course, following up any verbal statements in writing is good practice for having a defense. An example of quoting another source would be if the agent could say to the buyer, "I had a roofer come out and look at the shingles. He believes that the roof does not need to be replaced at this time."

Texas Deceptive Trade Practices-Consumer Protection Act (DTPA)

Allows an aggrieved consumer to hold a seller of goods and services liable for damages resulting from deceptive or unfair trade practices. When a license holder is the seller's agent, the license holder can be considered the seller of services, and a consumer can bring action against the license holder for knowingly and intentionally deceiving the consumer in the selling or leasing of any real property.

Intermediary Broker

An intermediary broker is a broker who negotiates a contract between two parties who are both being represented by that broker. For example, the agent for the buyer and the agent for the seller both work at Aceable Realty. The broker of Aceable Realty would be an intermediary broker. This is a very important requirement in intermediary transactions: In order for a brokerage to be able to represent both the buyer and seller in a real estate transaction, the brokerage needs to have the permission of BOTH PARTIES.

Fiduciary Duties Owed by Whole Brokerage- OLD CAR

And as we talked about earlier in this level, because special agency is created at the broker level, not only does the broker owe the client (principal) fiduciary duties, but ALL of that broker's sponsored agents also owe that client fiduciary duties (OLD CAR).

One to Four Family Residential Contract helps with the "as is"

As Is situation that could arise during negotiations. An agent will fill this part out as part of their offer to the seller's agent or seller.

Brokers are Held Responsible

Brokers in Texas are strictly regulated by TRELA. They must provide their associated agents with a policy manual, ascertain the agents are well trained and keep their licenses current, and keep them informed of any changes in the License Act or the rules of the Commission. If an agent violates the License Act, it is quite likely that TREC may find the broker guilty of not supervising their sales agent properly.

Unconscionable Action

DTPA defines an unconscionable action as one that "takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree."

DTPA Don'ts

Failing to identify as a subagent while showing a property to a buyer, which might lead the buyer to believe that the sales agent was a buyer's agent Suddenly increasing the rent on apartments to families who were displaced by a tornado Telling a buyer that the new air conditioner meets the new 13 SEER requirements when it does not Telling the buyer that the home was built by one builder when it was actually built by a different one

Errors & Omissions Insurance

I should mention here that most brokers carry errors and omissions insurance that covers the entire office to avoid lawsuits whenever possible. The insurance company should be informed as soon as possible when threats of a lawsuit are first received. The insurance does not cover every type of mistake, just as most home and auto insurance policies do not cover every type of damage.

One to Four Residential, Repairs

If repairs are required by the buyer after the inspection report is received, this information needs to be passed on to the listing agent and/or the seller. The owner should also be aware of Paragraph 7F of the One to Four Residential Contract, stating that repairs should be performed by qualified and licensed (if applicable) workers.

Warranty of Authority

In general, the agent is understood to operate under a warranty of authority. This is a kind of guarantee that an agent gives (explicitly or implicitly) to a third party that establishes that the agent has the authority to bind a principal - i.e., that the agent has the authority to make contracts, agreements, and enter into similar arrangements on the principal's behalf. The agent cannot be held responsible if the principal does not or cannot follow through on the agreements the agent makes on the principal's behalf.

Death and Taxes: Discussion

Individuals with AIDS or HIV are protected under the Americans with Disabilities Act (ADA) and, consequently, are also considered a protected class under Fair Housing Laws. It's a serious violation for a license holder to inquire about or disclose this personal information. Tom should not have agreed to seek an answer for his clients' question about AIDS. In this example, Tom also shouldn't have disclosed that the occupant died of cancer. This is because cancer is considered a natural cause of death that is not directly related to a dangerous defect in the house.

IABS Notice

License holders' first duty in agency relationships is the duty of disclosure. License holders acting as agents are required to provide all parties to a transaction with a written statutory statement that outlines Texas agency law and the duties of the broker. This statement is called Information About Brokerage Services Notice, but more commonly known as IABS Notice. The IABS Notice has to be given at the first substantive discussion about a specific property a.k.a. the first meeting.

Test Q?- Was it a violation for Tom to agree to inquire about the previous owner's death?

No, Tom was legally obligated to tell his clients about the death No, it is ethically ambiguous and up to each agent to inquire about Yes, Tom's inquiry was in violation of Fair Housing Laws * No, Tom was only doing what his clients asked

Test Q?- Does misrepresentation require malicious or deceptive intent?

No, unless it has to do with repairs. Yes, accidents are not considered misrepresentation. Yes, but only for agents. No, the seller, broker, or agent may be held liable even without it. * Answer The seller, broker, or agent may be liable for misrepresentation even without malicious or deceptive intent.

DTPA Don'ts

Placing a listing on a webpage that is actually a listing of another firm, intending to divert a buyer's call to the license holder's office rather than to the listing company Telling a buyer that the recently installed counter is granite when it is "faux" granite Telling the buyer that the tub in the master bath is a Jacuzzi when it is not that brand Advertising that the seller will give a general warranty deed when the seller will only give a special warranty deed Telling a buyer that the seller cut down the tree because it was rubbing against the roof when it was actually causing foundation problems Telling the buyer that the sellers had replaced the fan on the inside air conditioning unit when they had not Guaranteeing an investor that a property will appreciate 20% over the next two years Sponsoring a lottery drawing promising the house will go to the purchaser of the winning ticket

General Agency:

Principal Responsible for Agent Actions Whereas special agency is more limited, general agency gives agents more power as the principal holds more responsibility for the actions of their agent. In a general agency, the principal is responsible and beholden to their agent's actions. They may perform more actions and do not need explicit permission for all of their actions. Example: In the real estate world, the classic example of general agency is the relationship between a broker and a sales agent. A broker is responsible for their sales agents' actions.

Four Roles Defined-We defined the four roles that the general public plays in a real estate transaction.

Principal: A major party to a real estate transaction (buyer, seller, landlord, tenant) or an individual who authorizes an agent to represent their interests as a client in a real estate transaction Client: A person who has signed an agency agreement with you as their agent, a.k.a your principal Customer: A person on the other side of the transaction with whom the license holder does not have an agency relationship Third Party: Any person involved in a real estate transaction who is not your client

The DTPA prohibits the license holder from knowingly and/or intentionally deceiving the consumer in the selling or leasing of any real property.

Recovery under the DTPA is limited to economic damages, but if a license holder's violation of the DPTA is also a violation of Texas License Law, TREC can suspend or revoke the individual's license.

DTPA lists 31 specific violations (commonly referred to as the laundry list). Of these 31 violations, the following are applicable to the real estate industry:

Representing goods as new or original if they are in fact reconditioned or used Representing goods as meeting a certain standard, quality, or grade or as if they are of a particular style when, in fact, they do not fit these descriptions Misrepresenting facts concerning the goods, services, or business of another in order to discredit that entity Misrepresenting facts concerning the reasons for a reduction in price of goods or services Representing an agreement as containing rights, remedies, or obligations that it does not contain Concealing or misrepresenting the need for replacement or repair services Misrepresenting the authority of the representative to negotiate the transaction Claiming that replacement or repair services have been performed when, in fact, they have not Failure to disclose any information at the time of the transaction that may have affected the outcome of the transaction

Written and Verbal Risks

Sales agents should remember that whether communicating in writing or verbally, it is always possible to misrepresent. And verbal communication is doubly difficult because what someone said may not be what someone else heard. Remember, the prudent agent will make notes on all that transpired during the day and possibly even email follow-up messages to the people worked with during the day to reemphasize what was said.

Errors & Omissions Example

Say you're the listing agent on a property. Based on your knowledge, the property did not have termite damage. The seller marked that there was no damage in the disclosure and you didn't see any proof of damage on the property. A few months after closing, the buyer files a lawsuit against you for what was found to be termite damage. In this situation, errors and omissions would be the type of insurance to protect you.

License at Risk

Some of the infractions for which TREC may revoke or suspend an agent's license - that is, violations of license law which are also violations of the DTPA - are the following: Material misrepresentation or failure to disclose any known or latent property defects Deceptive practices in the marketing, selling, or offering of real property False promises made to the consumer through advertising or directly through the agent Failure to disclose which party is compensating the agent, or that more than one party is liable for compensation without the written consent of all parties involved Request or acceptance of an undisclosed compensation, a.k.a. accepting money from a client because they want you to do something illegal Acting as agent and undisclosed principal in a transaction

Three Agency Types: Special, General, and Universal There are three different types of agency relationships:

Special Agency (broker-client) General Agency (sales agent-broker) Universal Agency (child-parent and executor of will)

Test Q?- Which one of the following actions is most likely to be a violation of the Texas Deceptive Trade Practices-Consumer Protection Act?

Telling a client, "That's a question for your lawyer." Telling a client, "I don't know, let me get back to you on that." Telling a buyer you're not sure if a home had ever flooded when you know for a fact that it had. * Refusing to answer questions about the condition of a home's HVAC system, and instead referring a buyer to a professional. Answer The Deceptive Trade Practices Act prohibits the license holder from knowingly and/or intentionally deceiving the consumer in the selling or leasing of any real property. Providing a list of professionals to choose from does not violate the law.

Law of Agency

The Law of Agency establishes a fiduciary relationship. Agency is what makes this career so unique. Brokers and sales agents take care of their clients in a way that few other professionals do.

Protect Yourself

The license holder would have to prove that they gave the information in writing to the consumer prior to the closing of the sale.

DTPA Violations

The seller, broker, or agent may be held liable for misrepresentation even if there is no proof of them knowing the info was inaccurate. Misrepresentation does not require malicious or deceptive intent. If they are found to have knowingly deceived, though, it can increase their potential liability. For example, the license holder could be held liable for damages caused by distress, in addition to the financial damages.

What kind of damages can a consumer expect to recover in the event that they are successful in DTPA lawsuit against a seller or an agent?

They can expect to receive treble damages, which is just a fancy legal-speak way of saying "three times as much." You and I might call it "triple." But the law calls it "treble." You'll hear this frequently mentioned in some texts with regard to damages awarded in lawsuits — like DTPA lawsuits, for example.

Test Q? -

To purposefully lie or trick a consumer into a purchase of bet with the knowledge of wrongdoing To take advantage of a consumer with fraudulent actions To take advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree * To extort funds or other money from a consumer with malicious intentions

Test Q?- Was Tom right in discouraging his clients from taking the closing documents to an attorney?

Yes, attorneys are not needed in basic transactions Yes, he needs his client's trust No, you should never discourage clients from seeking advice from an attorney * Yes, Tom was using only TREC approved forms, so the use of an attorney was not needed

Fraud:

A misstatement made intentionally to deceive

Puffing is

Describing a property in a flattering or favorable way. ("The house has an amazing yard and fabulous natural light!" or "The best ocean view in town!") It is not considered misrepresentation unless the puffery is extreme ("This house is absolutely perfect in every way!").

Damages under the DTPA refers to:

Economic damages (compensatory damages for pecuniary loss, including costs of repair and replacement) Non-economic damages (exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society)

Universal Agency: The Most Broad Type of Agency

Is the most broad type of agency. Universal agency gives agents the power to act and make decisions on behalf of the principal. Under universal agency, an agent is given the General Power of Attorney — this means the agent has the actual power to sign legal documents on behalf of their principal. Example: An adult son who has been authorized by his father to take care of his well-being and finances in his old age would be an example of universal agency.

Commingling

Mixing a client's funds with an agent's personal funds is known as and is illegal.

Fiduciary Duties A way to help you remember the fiduciary duties is the acronym OLD CAR

Obedience (if legal) Loyalty (100%) Disclosure (full) Confidentiality (forever) Accounting (forever) Reasonable care

Client and Customer Comparison: Working for Clients Understanding the difference between a customer and a client is crucial for understanding agency relationships. By law, agents are expected to give differing levels of service to customers and clients. Here's a quick snapshot of the difference:

A broker works for a client A broker works with a customer As a future sales agent who will be representing the interests of a broker and their clients, this is true for you as well. Sales agents work for clients, and they work with customers.

Errors and Omissions Insurance

Most brokers carry errors and omissions insurance that covers the entire office to avoid lawsuits whenever possible.

Giving Opionions

Name the source, don't BE the source

Example- Misrepresentation

A license holder may have lived in a particular area for a long time. The agent may think that they have knowledge about where the flood zones are. The sales agent may even quote the area that is considered to have greatest the potential for flooding. Let's say the buyer makes a purchase based on the agent's information about the flood zones. If the buyer's improvements are washed away and it is discovered that the statement by the sales agent was incorrect, there might be cause for possible action under the Deceptive Trade Practices Act.

A Lien

A lien is a type of security interest granted over a property to secure the payment of a debt or performance of some other obligation. Generally, liens must be cleared before a home can be sold to a new owner. As you read, ask yourself if the agent's actions are defensible or not under the DTPA.

Unconscionable Action

A person makes an unconscionable action when they take advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree. So don't do that.

Damages under the DTPA refers to:

Economic damages (compensatory damages for pecuniary loss, including costs of repair and replacement) Non-economic damages (exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society) Non-economic damages include exemplary damages, which are also known as punitive damages. These are intended to reform or deter the defendant and others from engaging in similar conduct.

Seller's Disclosure Notice form

Sellers are not obligated to use this specific form. As long as the disclosure includes all of the information that TREC requires, any form may be used. Seller's Disclosure Notice is an opportunity for the seller to be upfront and comprehensive about all facts and defects concerning the property. It is the real estate license holder's responsibility to advise the seller about the necessity of the disclosure notice, although the form itself should be filled out by the seller.

Consumers Recover More

Since 1973, the law has allowed consumers to recover more than just the amount of their actual losses. The plaintiff can receive everything that was lost as well as up to three times that amount plus attorney fees and court costs. This is used as a deterrent to someone committing fraud and misrepresentation.

Texas DTPA- to prevent lawsuits agents should...

To prevent lawsuits under the DTPA, real estate agents must be diligent about disclosing the known facts about a property and disclosing the source of those facts. Agents should also: Recommend that buyers arrange an independent inspection of the property Avoid offering opinions or making exaggerated statements about the property (puffing) Keep careful notes and records regarding the transaction

Determining Fraud

We can define fraud as a deceptive act that was committed intentionally by someone in order to get an unfair advantage over someone else. To sue for fraud, all of the following need to apply to the situation: A material representation was made to the plaintiff by the defendant. The representation was false. The defendant knew the statement was false or made the statement not knowing whether the statement was true. The statement was made with the intention the other person should act on it. The other person relied on that representation and acted on it. The other person was damaged in some way by the statement.

E&O Protection

What does errors and omissions actually protect against? Say you're the listing agent on a property: From your knowledge, the property did not have termite damage. The seller marked that there was no damage in the disclosure, and you didn't see any proof of damage on the property. A few months after closing, the buyer files a lawsuit against you for what was found to be termite damage. In this situation, errors and omissions would be the type of insurance to protect you.

DTPA Lawsuits

When a lawsuit is filed under the DTPA, there are a number of ways the problem might be resolved. A reasonable settlement can always be made between the license holder and the consumer if the case is addressed within a set time limit. An agent may be released from liability if they can show that the inaccurate information they provided to the consumer was obtained from another source (for example, from governmental records or a seller's disclosure form), and that the agent had no reasonable way of knowing that information was false.

Test Q? - What type of agency does a broker have with a seller client?

universal agency general agency special agency * secret agency

Special Agency vs. General Agency

A general agent is empowered to act on behalf of another in a broad range of actions such as in a business. A special agent has authority within the limitations of what is specifically determined in a representation or listing agreement. Broker + seller client = special agency.

Mixing money that belongs to another person with personal money is messy and unethical. If a license holder receives escrow funds in a real estate transaction, that money must be deposited within a reasonable amount of time into a separate account.

Agents (and any sales agents acting on their behalf) cannot wait any longer than the close of the second business day after the signing of a contract to make these deposits.

Stating your quote

An act as simple as misquoting the square footage of a home could be a cause of action for a lawsuit under DTPA. This is why sales agents give the source of the information that they are giving to the customer or client. Like this: "According to the appraisal district, the square footage is ___."

Agency Relationships

An agency relationship is created when an individual authorizes another party to represent them and act in their best interest. In the context of real estate transactions, the agent is a licensed representative of the seller, buyer, landlord, or tenant.

Agent Liability

An agent can be held liable for passing on suspected false information without verifying it or for intentionally misrepresenting information to parties. An agent is usually not held liable for the actions of a principal unless they could have have known it was false or misleading information.

Which of the following is an example of misrepresentation?

An agent thinks there are hardwood floors beneath the carpet of a property and implies to the buyer that there are, when in fact, there are not. * An agent denies that a property he is selling has termites, even though he knows that it does have termites. An agent hides the mold condition of a home because they know it would hinder the sale of the home. An agent discloses to a buyer that the homes surrounding a property have been selling for over $200,000, when he knows they have not. Answer Fraud is intentional. It generally includes both affirmative misrepresentations and affirmative concealment, and the person making the misrepresentation is aware of the true facts.

Special Agency:

For Specific Actions In a special agency relationship, the client grants their agent the authority to act on their behalf for specific actions. Specific actions such as... Listing their home on the MLS Representing their interests as a buyer at an open house Example: Broker Amanda and her client Melissa have a special agency relationship because Broker Amanda only does specific actions for Client Melissa.

Test Q? - What is the BEST way to avoid giving misinformation (and consequently, violating the Texas Deceptive Trade Practices-Consumer Protection Act)?

Cite a source for any information you give a client about a property. * Make sure you know the facts before you share them. Ensure you never share hard facts about any property with a client. Only share information with clients verbally, never in writing. Answer The best way to avoid giving misinformation (and violating the Deceptive Trade Practices Act) is to cite a source whenever you give clients information. Remember: name the source, don't be the source.

Violations Here are a few violations you should absolutely avoid while working in real estate:

Conduct that constitutes dishonest dealings, bad faith, or untrustworthiness (1101.652(b)(2)) Making a material misrepresentation or failing to disclose to a potential purchaser any latent structural defect or any other defect known to the broker or sales agent. Latent structural defects and other defects do not refer to trivial or insignificant defects but refer to those defects that would be a significant factor to a reasonable and prudent purchaser in making a decision to purchase. Continued and flagrant course of misrepresentation or making of false promises through agents, salespersons, advertising, or otherwise. Failing to make clear to all parties in a transaction which party he is acting for, or receiving compensation from more than one party except with the full knowledge and consent of all parties. Accepting, receiving, or charging an undisclosed commission, rebate, or direct profit on expenditures made for a principal Soliciting, selling, or offering for sale real property under a scheme or program that constitutes a lottery or deceptive practice. Guaranteeing, authorizing, or permitting a person to guarantee that future profits will result from a resale of real property. Inducing or attempting to induce a party to a contract of sale or lease to break the contract for the purpose of substituting in lieu thereof a new contract.

Disclosure

First and foremost, real estate license holders must be vigilant about the disclosures they make to the prospective buyer concerning property. Again, the duty of disclosure is central to the agent's role in a fiduciary relationship, even when dealing with a third party. The license holder must disclose any and all defects of a property (of which they are aware), including any additional information about the property that may affect the prospective buyer's final decision.

When asked to inquire about the previous owner's death, how should Tom have responded?

He should tell his clients he's legally not allowed to inquire about the death * He should tell his client's he will do whatever they ask He will ask, but can't promise he'll find anything out He will see if he can get some gossip, but legally he can't say anything

Damages Awarded

If a court finds that the conduct of the seller or the agent was committed "knowingly," a court may award not more than three times the amount of economic damages plus add damages for mental anguish. If a court finds the conduct of the seller or the agent was committed "intentionally," a court may also award not more than three times the amount of damages for mental anguish AND economic damages. The consumer will also be awarded court costs and reasonable and necessary attorney fees.

Reccomendations

If the consumer is dissatisfied with the work of that individual, the license holder could be held liable. Instead, the agent can provide the consumer with a list of qualified professionals.

Second Look

If the initial inspection reveals defects in the property and the appropriate repairs are made, the prospective buyer should be encouraged to review the property a second time to ensure that the defects have been addressed to their satisfaction. In the event that a prospective buyer chooses not to have a property inspected, the license holder should secure a signed written statement from the prospective buyer stating that they made this choice despite the license holder's recommendation that the property be inspected.

Broker Jamie had been representing Buyer Kendra for two months when he finally found a suitable property for her. Buyer Kendra agreed to purchase this property, and presented an offer of $80,000, which was $10,000 less than the listing price. The seller (Seller Langdon) agreed, and they proceeded towards closing.At closing, however, the transaction fell through. It was discovered that there were several liens on the property, and the property could not be sold. Seller Langdon was aware of the liens but had thought he would be able to clear them before the date of closing. He had kept this information hidden from his broker, Broker Mandi. Buyer Kendra is very upset about this issue and wants to file a lawsuit. So, which party is liable?

It is the seller who is liable for concealing this information. Although agents are held responsible for their own wrongful actions and negligence, there are only certain circumstances under which they are held liable for a client's actions. Since the seller concealed this information from the broker in this case, the broker is not responsible to the prospective buyer for undisclosed liens on the property.

Misrepresentation vs. Fraud

Misrepresentation is an unintentional mistake, written or spoken. Uh-oh! Fraud, however, is intentional deception, like deciding not to disclose a material defect to prospective buyers.

In order for the Texas Real Estate Commission to revoke or suspend an agent's license,

That license holder's violations of the DTPA must be coupled with violations of provisions set forth in the Texas Real Estate Licensing Act.

A common form of non-economic damages awarded in DTPA lawsuits are those resulting from mental anguish.

The courts often decide that not only are plaintiffs owed recovery for their economic losses, but also recovery of their time and energy spent dealing with the misconduct of the agent or broker.

Intentionally: Defined

Under the DTPA, "intentionally" means actual awareness of the falsity, deception, or unfairness of the act or practice, or the condition, defect, or failure constituting a breach of warranty giving rise to the consumer's claim, coupled with the specific intent that the consumer act in detrimental reliance on the falsity or deception or in detrimental ignorance of the unfairness. Intention may be inferred from objective manifestations that indicate that the person acted intentionally or from facts showing that a defendant acted with flagrant disregard of prudent and fair business practices to the extent that the defendant should be treated as having acted intentionally.

Fraud vs. Misrepresentation

Under the DTPA, it is possible to be accused of fraud or misrepresentation. However, it is very unlikely that a real estate agent will be accused of fraud in a courtroom. This is because when fraud is the charge, it has to be proven that the defendant did the act intentionally. Since that is so hard to prove, most charges are about misrepresentation. In misrepresentation, which is the unintentional spread of false information, the only proof that has to be presented to the court is that the defendant did something that was misleading or incorrect, and that the plaintiff was harmed by the action of the defendant.

Knowingly: Defined

Under the DTPA, knowingly means actual awareness at the time of the act or practice in complaint, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer's claim. In the event of a breach of an express or implied warranty, "knowingly" means actual awareness of the act, practice, condition, defect, or failure constituting the breach of warranty. It's important to note that actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.

Test Q? - A license holder is required to disclose a property defect:

if the seller has disclosed the defect at all * whether or not the seller is aware of the defect only if the buyer asks if the seller has disclosed the defect in writing Answer A license holder is required to disclose a property defect if the seller has disclosed the defect at all.