California Civil Jury Instructions (CACI) (2017)

1910. Real Estate Seller’s Nondisclosure of Material Facts

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1910.Real Estate Seller’s Nondisclosure of Material Facts
[Name of plaintiff] claims that [name of defendant] failed to disclose
certain information, and that because of this failure to disclose, [name of
plaintiff] was harmed. In order to establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of plaintiff] purchased [describe real property] from
[name of defendant];
2. That [name of defendant] knew that [specify information that was
not disclosed];
3. That [name of defendant] did not disclose this information to
[name of plaintiff];
4. That [name of plaintiff] did not know, and could not reasonably
have discovered, this information;
5. That [name of defendant] knew that [name of plaintiff] did not
know, and could not reasonably have discovered, this
information;
6. That this information significantly affected the value or
desirability of the property;
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s failure to disclose the information was
a substantial factor in causing [name of plaintiff]’s harm.
New December 2009
Directions for Use
This instruction sets forth the common law duty of disclosure that a real estate
seller has to his or her buyer. Nondisclosure is tantamount to a misrepresentation.
(See Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 161 [89 Cal.Rptr.3d
495].)
For certain transfers, there is also a statutory duty of disclosure. (See Civ. Code,
§ 1102 et seq.) The scope of the required disclosure is set forth on a statutory form.
(See Civ. Code, § 1102.6.) The common law duty is not preempted by the statutory
duty (see Civ. Code, § 1102.1(a)), but breach of the statutory duty can constitute
proof of breach of the common law duty if all of the elements are established.
(See, e.g., Calemine, supra, 171 Cal.App.4th at pp. 164–165 [seller did not disclose
earlier lawsuits, as required by statutory form].)
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Sources and Authority
• Real Estate Buyer’s Action Against Seller. Civil Code section 1102.13.
• “A real estate seller has both a common law and statutory duty of disclosure.
[Under the common law duty]: ‘In the context of a real estate transaction, “. . .
where the seller knows of facts materially affecting the value or desirability of
the property . . . and also knows that such facts are not known to, or within the
reach of the diligent attention and observation of the buyer, the seller is under a
duty to disclose them to the buyer. [Citations.]” [Citations.] Undisclosed facts
are material if they would have a significant and measurable effect on market
value. [Citation.]’ A seller’s duty of disclosure is limited to material facts; once
the essential facts are disclosed a seller is not under a duty to provide details
that would merely serve to elaborate on the disclosed facts. Where a seller fails
to disclose a material fact, he may be subject to liability ‘for mere
nondisclosure since his conduct in the transaction amounts to a representation of
the nonexistence of the facts which he has failed to disclose [citation].’
Generally, whether the undisclosed matter was of sufficient materiality to have
affected the value or desirability of the property is a question of fact.”
(Calemine, supra, 171 Cal.App.4th at p. 161, internal citations omitted.)
• “Generally, where one party to a transaction has sole knowledge or access to
material facts and knows that such facts are not known or reasonably
discoverable by the other party, then a duty to disclose exists.” (See Shapiro v.
Sutherland (1998) 64 Cal.App.4th 1534, 1544 [76 Cal.Rptr.2d 101].)
• “Failure of the seller to fulfill [the] duty of disclosure constitutes actual fraud.”
(Lingsch v. Savage (1963) 213 Cal.App.2d 729, 736 [29 Cal.Rptr. 201].)
• “When and where the action by the purchaser is based on conditions that are
visible and that a personal inspection at once discloses and, when it is admitted
that such personal inspection was in fact made, then manifestly it cannot be
successfully contended that the purchaser relied upon any alleged
misrepresentations with regard to such visible conditions. But personal
inspection is no defense when and where the conditions are not visible and are
known only to the seller, and ‘where material facts are accessible to the vendor
only and he knows them not to be within the reach of the diligent attention and
observation of the vendee, the vendor is bound to disclose such facts to the
vendee.’ ” (Buist v. C. Dudley De Velbiss Corp. (1960) 182 Cal.App.2d 325,
331 [6 Cal.Rptr. 259].)
• “In enacting [Civil Code section 1102 et seq.], the Legislature made clear it did
not intend to alter a seller’s common law duty of disclosure. The purpose of the
enactment was instead to make the required disclosures specific and clear.
(Calemine, supra, 171 Cal.App.4th at pp. 161–162.)
• “The legislation was sponsored by the California Association of Realtors to
provide a framework for formal disclosure of facts relevant to a decision to
purchase realty. The statute therefore confirms and perhaps clarifies a disclosure
obligation that existed previously at common law.” (Shapiro, supra, 64
FRAUD OR DECEIT CACI No. 1910
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Cal.App.4th at p. 1539, fn. 6.)
Secondary Sources
1 California Real Estate Law and Practice, Ch. 71, Real Property Purchase and
Sale Agreements, § 71.30 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31 (Matthew
Bender)
50 California Forms of Pleading and Practice, Ch. 569, Vendor and Purchaser of
Real Property, § 569.11 (Matthew Bender)
2A California Points and Authorities, Ch. 31, Brokers and Salesperson, § 31.142
(Matthew Bender)
Greenwald et al., California Practice Guide: Real Property Transactions (The Rutter
Group) ¶ 4:351 et seq.
1911–1919. Reserved for Future Use
CACI No. 1910 FRAUD OR DECEIT
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