by Marilyn E. Tomei, Associate Legal Counsel
Many of the complaints against licensees filed with the Commission involve misrepresentation of material fact. A number of these complaints involve licensees who falsely represented that homes they were offering for sale had hardwood floors under the wall-to-wall carpet. A common excuse for these misrepresentations is, "The seller told me there were hardwoods under the carpet." But "The seller told me..." is not an adequate defense to such a complaint. |
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Under North Carolina's Real Estate License Law, a licensee may be disciplined for misrepresenting or omitting a material fact even if it was unintentional or due to negligence in verifying facts. Thus, if a seller tells you that the home has hardwood floors under the carpet, you must take steps to verify the seller's statement.
Unfortunately, some sellers may deliberately misrepresent their homes' features in order to make their homes more appealing. Or the seller might not know the true facts. For example, in a complaint received last year, the sellers (and the builder) firmly believed that their townhouse had hardwood floors throughout. But in fact, the townhouse had no hardwoods in the formal areas.
In another case, the sellers insisted that there were hardwood floors under the carpet, but adamantly refused to let the listing
agent pull up the carpet to verify their statement. Although their refusal should have been a "red flag," the agent took the sellers' word for it and advertised the property as having hardwood floors throughout. When the buyers pulled up the carpet to refinish the floors, they were extremely disappointed to discover that the floors were not hardwood.
Verifying hardwood floors can be done a number of ways. If a home with carpeted floors has forced air heat, look for vent covers on the floor. The vent cover may lie unattached on the carpet, with a hole cut out of the carpet to allow for the flow of air. Thus, you can lift the vent cover to reveal the floor.
Another method is looking inside a closet. The wall-to-wall carpeting may not extend all the way into a closet with a hardwood floor. If the floor of the closet is hardwood, the entire room is probably hardwood. But if the floor of the closet is carpeted, you must use one of the other methods to verify the floor underneath.
In a room that has no quarter-round or base molding around the perimeter of the floor, you may be able to see the floor by picking up the carpeting at a corner and then carefully replacing it.
Also, carpet and floor installers often use a metal transition strip (called a "reducer") between a carpeted room and a room with different flooring. Thus, you may be able to pull up the reducer and look underneath to determine the flooring.
If none of these verification methods is practical, you must be cautious in your advertising. You should not advertise the property as having hardwood floors unless you indicate in your advertising, "Hardwoods believed to be under carpet, but not verified"; or "Hardwoods under carpet -per seller"; or some similar indication that you have not independently checked this feature of the property.
Also, if you are an MLS member, you cannot avoid responsibility by relying on the disclaimer that the information in the MLS is thought to be correct, but must be verified by the buyer.
Remember, buyers have every reason to believe that information provided to them by the listing agent or selling agent is accurate. If you are that agent, check before you speak.