CACI No. 1910. Real Estate Seller’s Nondisclosure of Material Facts

Judicial Council of California Civil Jury Instructions (2023 edition)

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1910.Real Estate Sellers 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
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; Revised May 2020
Directions for Use
This instruction sets forth the common law duty of disclosure that a real estate seller
has to a 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].)
Sources and Authority
Real Estate Buyers Action Against Seller. Civil Code section 1102.13.
‘A real estate seller has both a common law and statutory duty of
disclosure. . . . “In the context of a real estate transaction, ‘[i]t is now settled in
California that 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.]” . . . 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].” [Citation.]’ (RSB Vineyards,
LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1097 [223 Cal.Rptr.3d 458], original
“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.)
“Actual knowledge can, and often is, shown by inference from circumstantial
evidence. In that case, however, “actual knowledge can be inferred from the
circumstances only if, in the light of the evidence, such inference is not based on
speculation or conjecture. Only where the circumstances are such that the
defendant ‘must have known’ and not ‘should have known’ will an inference of
actual knowledge be permitted.” (RSB Vineyards, LLC,supra, 15 Cal.App.5th
at p. 1098, internal citation 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.
“In enacting [Civil Code section 1102 et seq.], the Legislature made clear it did
not intend to alter a sellers 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
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
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, Ch. 4-E,
Purchase and Sale Agreement - Terms and Conditions, 4:351 et seq. (The Rutter
1911-1919. Reserved for Future Use

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