In real estate, not every post-closing surprise is a lawsuit waiting to happen. Sometimes, it's a case of misunderstanding what agents and sellers are actually required to disclose—especially in a state like Virginia, where the law puts the burden of discovery squarely on the buyer.

Here’s what happened:

A listing agent met with a seller to prepare the home for market. During the appointment, the agent asked a standard set of questions, including one about the fireplace.

“I never use it,” the seller said.

No concerns were raised. The home hit the market, went under contract quickly, passed the home inspection, and closed without issue.

But a few weeks after settlement, the buyer’s agent called, furious:

“Why didn’t you disclose the report that said the fireplace was defective?”

The listing agent was caught off guard. It turns out the seller had a fireplace inspection earlier in the year, which uncovered a cracked flue liner, creosote buildup (a fire hazard), and masonry issues—but never mentioned it to the listing agent.

So who’s responsible?

In Virginia, which follows the “Caveat Emptor” (buyer beware) doctrine, sellers are not required to disclose property defects, except under very limited circumstances (like proximity to military airspace or use as a meth lab). You can find a full list here:

🔗 NVAR Disclosure FAQs

So, even though the seller had prior knowledge of the defect, they weren’t legally obligated to disclose it in Virginia.

But what about the agent?

This is where things differ. While sellers in Virginia have limited disclosure duties, licensed real estate agents have a higher standard. Under both the Code of Virginia and the REALTOR® Code of Ethics, listing agents must disclose Known, Adverse, Material Facts about the property or transaction.

Let’s break that down:

• Known – The agent must be aware of it - or in few circumstances, they should have known. 
• Adverse – The issue must negatively impact the property or transaction.
• Material – It must be important enough that a reasonable person would want to know.
• Fact – It must be a verifiable issue, not just an opinion or suspicion.

In this case, the fireplace defects were adverse, material, and factual—but the agent never knew about them. And that’s key. An agent can’t disclose what they don’t know. In fact, agents are not required to investigate or uncover hidden defects. That’s made clear in Article 2 of the REALTOR® Code of Ethics:

“REALTORS® shall not, however, be obligated to discover latent defects in the property.”

So while agents do carry greater disclosure responsibilities than sellers, those responsibilities don’t extend to playing detective.

The Bottom Line: Buyer Beware Still Reigns in Virginia

If you're buying a home in Virginia, do your homework. Hire a qualified inspector. Ask specific questions. If something seems important—like a fireplace that hasn’t been used in years—don’t assume someone else has already checked it out.

Because in a buyer-beware state like Virginia, it’s up to the buyer to uncover issues before settlement, not after.