Haunted by the Law

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It was a dark and stormy late October night. Jagged lightening bolts illuminated the blood red leaves of the great oak tree in the front yard. Deafening thunder shook the windows and siding of the house. Rain came pounding down. The wind howled.

Then there was silence. The wind died down, the rain stopped and the storm had passed.

But then the screaming began.    The eerie sound originated in the attic. John and Jane Doe huddled together under the covers in their master bedroom. They knew that for the next several hours the poltergeist that inhabited their attic would descend to the main house, overturn tables, knock pictures from the walls and scream at their family before returning to the attic and falling silent again for another year. It happened every year around Halloween. They also knew that they could no longer endure the ghost. They had to sell their house.

Before meeting with their real estate agent, Mr. and Mrs. Doe met with me to determine whether they would be required to disclose the existence of the poltergeist to prospective purchasers.

I explained to them that if they provided a statutory disclaimer to potential sellers, they would not have to reveal the existence of the phantom. But if they were asked directly whether their house were haunted, they would have to disclose the truth.

One of my associates pointed out that under Virginia law no cause of action arises against a seller for failure to disclose that the subject real property was the site of An act or occurrence which had no effect on the physical structure of the real property, its physical environment, or improvements located thereon, or a homicide, felony, or suicide. Such property is also known in the law as stigmatized property.

However, the physical manifestations of the ghost, such as the tipping over of furniture and knocking down of pictures, were effects which placed the haunted property outside the definition of merely stigmatized property.

I advised Mr. and Mrs. Doe that it would probably be prudent to disclose the noisy spirit rather than invite a lawsuit for misrepresentation, the damages for which could be the cost of an exorcism. Besides, most people believe ghosts are surreal or imaginary phenomena, anyhow.

Happy Halloween! 
 
H. Kent Kidwell is the senior partner at the law firm of  Kidwell, Kent & Curran
in Fairfax City

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