ISSUE:

One month ago, a buyer closed on the purchase of a lot in an unincorporated area of the county. The lot was not a subdivided lot. The seller failed to furnish to the buyer an affidavit of disclosure, and no affidavit of disclosure was recorded, as required by A.R.S. § 33-422. The buyer has now discovered significant problems with the lot that may prevent construction of a new home on the lot. Can the buyer rescind the transaction after closing because the buyer was not furnished an affidavit of disclosure?

ANSWER: 

No. Although an affidavit of disclosure was not received by the buyer and recorded prior to closing, the buyer has no right to rescind the contract after closing. See Verma v. Stuhr,223 Ariz. 144, 221 P.3d 23 (App.2009). The buyer, however, still would have a claim against the seller for damages for the seller’s failure to disclose any material and adverse fact relating to the lot. For example, if the seller knew of an expansive soils problem and failed to disclose the expansive soils problem, the buyer would have a claim against the seller for damages even though there was no affidavit of disclosure.

Arizona REALTOR® October 2010