The seller didn't disclose a problem. What are your options in New York?

Finding a serious problem right after closing is more common than most buyers assume. The National Association of Realtors' legal team reports that failure to disclose is the most common claim against real estate licensees. In one Cinch Home Services study, 60% of sellers admitted to not disclosing a known problem with their property, and 95% of buyers said they found issues after closing. So if you are reading this a week after getting the keys, you are not an outlier.

The harder question is what, if anything, you can do about it. In New York, the answer turns on a distinction that surprises a lot of buyers: there is a real difference between a seller who stayed silent and a seller who hid something. This article walks through that line, what a claim generally requires, and the practical steps worth taking early. It is general information, not legal advice.

What “failure to disclose” means in New York

New York is, by default, a “buyer beware” state. Courts call the rule caveat emptor: a seller dealing at arm's length generally has no duty to volunteer defects and is “under no duty to speak,” so mere silence — without some act that deceives the buyer — is not fraud (London v. Courduff, 141 A.D.2d 803 (2d Dep't 1988)). The burden is on the buyer to inspect and ask.

There is an important exception: active concealment. A seller can be liable where they do something beyond staying silent — some act that conceals a defect and, in the words of New York's courts, “thwart[s] the [buyer's] efforts” to inspect and discover it (Jablonski v. Rapalje, 14 A.D.3d 484 (2d Dep't 2005); Simone v. Homecheck Real Estate Servs., 42 A.D.3d 518 (2d Dep't 2007)). So “the seller didn't disclose” splits into two very different situations: mere silence, which on its own is often not enough, and concealment or a false statement, which may be. Which one you are in decides almost everything that follows.

The disclosure statement, and what changed in 2024

New York also has a statutory disclosure form. Under the Property Condition Disclosure Act (Real Property Law article 14, §§ 460–466), a residential seller must complete and sign a Property Condition Disclosure Statement and deliver it to the buyer before the buyer signs a binding contract of sale (Real Property Law § 462), subject to the exemptions the statute lists.

For years, sellers could sidestep that form: former Real Property Law § 465 let a seller who did not deliver the statement simply give the buyer a $500 credit at closing, and many did. That changed. The Act was amended by Chapter 484 of the Laws of 2023 (signed September 22, 2023, effective March 20, 2024), which removed the $500 credit-in-lieu option — so sellers are now expected to complete and deliver the statement — and added seven new flood-related questions, growing the form from 49 to 56 questions. For a buyer, a signed disclosure form matters for one concrete reason: it puts the seller's representations about the property in writing, on a dated document you can point back to.

Disclosure vs. concealment vs. sales talk

Courts sort what a seller said into categories, and the category usually decides the outcome. The exact lines are fact-specific, but the general shape looks like this:

• Nondisclosure. Staying silent about a defect. Under buyer-beware, this alone is frequently not actionable.
• Active concealment or misrepresentation. Painting over a water stain the week before showings, or answering “no known water issues” when the seller bailed out the basement every spring. This is the category that can support a claim.
• Puffery, or sales talk. “Best block in the neighborhood.” That is opinion, not a statement of fact, and opinion is generally not actionable, even from an expert (Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173 (2011)).

Notice what every one of these turns on: what was actually said, when it was said, and whether you can show it. That is not a coincidence, and it is where most of these disputes are won or lost.

Common situations, and where the line usually falls

Abstract rules are easier to apply against real facts. A few patterns come up again and again in New York, and they map onto the categories above.

• Water in the basement. A seller who simply never mentioned occasional dampness is on very different footing from one who repainted the walls and ran a dehumidifier during every showing, then wrote “no” next to a water question on the disclosure form. The first looks like silence; the second looks like concealment plus a misstatement.
• A repair that was patched, not fixed. “The roof was redone” is a statement of fact. If the seller knew it was a partial patch over an ongoing leak, the gap between what was said and what was known is exactly what these claims are built on.
• The line in the wrong place. Boundary and encroachment surprises often trace back to something a survey would have caught. Whether anyone had a duty to flag it, and who relied on what, again comes down to the paper trail: the survey, the title work, and what was said about both.

In every one of these, the outcome turns less on the defect itself than on what was represented, what the seller knew, and whether there is a record of it. These are illustrations, not verdicts — New York courts decide active-concealment cases on their own facts. (The textbook example is a seller accused of concealing a seasonal bat infestation, in Jablonski v. Rapalje.)

What you would actually need to prove

A fraud or active-concealment claim in New York generally asks the buyer to establish five things (Eurycleia Partners v. Seward & Kissel, 12 N.Y.3d 553 (2009)): a material misrepresentation, or — where the seller had a duty to disclose — a material omission; that the seller knew it was false; that it was made to induce reliance; that you justifiably relied on it; and that it caused you a loss. Fraud also has to be proven by “clear and convincing” evidence, a higher bar than most civil claims. Each element is its own hurdle.

In practice, two of those hurdles — what the seller knew, and what you reasonably relied on — usually live in conversations. A text from the listing agent. An email answer to a question your attorney asked. A “don't worry, that's been fixed” said across a kitchen island. If those exchanges were never recorded, the case becomes your memory against theirs, which is a weak place to start.

Timing matters too. New York's statute of limitations for fraud gives you the greater of six years from when the fraud occurred or two years from when you discovered it, or reasonably could have (Civil Practice Law and Rules § 213(8)). The clock can start once the circumstances would put a reasonable person on notice, so do not sit on it.

Practical steps after you discover a problem

1. Document the condition now. Photos, dates, and a running note of what it is costing you. Contemporaneous beats reconstructed.
2. Gather the whole transaction file. The disclosure statement, the inspection report, every email and text with the agents and the other side, and your attorney's file.
3. Get the defect assessed in writing by a qualified professional, so the nature and cost are on the record and not just in your recollection.
4. Talk to a licensed New York real estate attorney before you spend money on repairs you might later need to prove, and before any deadline runs.
5. Preserve, don't edit. Do not clean up, delete, or annotate your own records. Altering them, even innocently, can undercut you later.

Why it usually comes down to records

The reason these disputes are so hard is not that the facts are unknowable. It is that the trail is scattered: texts on one phone, emails across three inboxes, a portal nobody can log into anymore, and a couple of phone calls no one wrote down. The facts exist. They are just not in one place, and nothing stops a party from remembering them differently once money is on the line.

That gap is the reason ClosingRecord exists. It puts every message, document, and decision from a closing into one file that every party shares, and seals it so the record cannot be quietly changed after the fact. It does not decide who is right, and it does not make anything automatically admissible in court — a judge still decides that. What it does is make the record cheap to verify and expensive to fake, which is often exactly what a “you said / I said” dispute is missing.

Concretely, that means the disclosure statement, the inspection report, the emails between attorneys, and the agent's answers to your questions all sit in one place, each stamped with when it happened and sealed so a later change is detectable. If a question arises about what was represented before closing, the answer becomes a lookup rather than an argument. That does not decide the dispute, but it removes the part that usually makes these disputes slow and expensive: reconstructing a timeline nobody kept.

If you want to see what that looks like in practice, you can read how buyers can capture what they were told before closing, or walk through a complete sample transaction in your browser.