The duty to investigate concerns what you, as a buyer, are expected to look into yourself. The duty to disclose concerns what a seller is required to share. That distinction is exactly where confusion often arises, and where disputes after the purchase can begin.

In this article, we explain in a clear and practical way what both duties mean, how they relate to each other, and why it is important to understand the difference during the buying process.

What is the duty to Investigate?

The duty to investigate refers to the responsibility you have as a buyer to examine what you are purchasing. It means taking reasonable steps to understand the condition of the property before making a final decision.

In practice, this means paying attention to visible elements and signals during the buying process. If something stands out or raises questions, you are expected to take note of it and, where necessary, look into it further.

The duty to investigate does not mean that you must rule out every possible risk or discover every hidden defect. It is about acting carefully and reasonably based on the information available at the time. Anything that is visible, logical to check, or gives reason for concern falls within this responsibility.

In short, the duty to investigate means actively observing, thinking, and acting when assessing a property.

What is the duty to disclose?

The duty to disclose lies with the seller. It means that the seller is required to share certain information with the buyer. This concerns known facts or defects that could influence the buyer’s decision to purchase the property.

In practice, the duty to disclose mainly applies to issues that are not immediately visible or easy for a buyer to discover. These are matters the seller is aware of, but which would not necessarily come up during a viewing.

The duty to disclose may include, for example:

• Known structural issues.

• Recurring leaks or moisture problems.

• Foundation problems.

• Legal restrictions or special agreements.

• Previous damage that affects the condition of the property.

The core of the duty to disclose is that a seller may not withhold important information they know to be relevant to the buyer. This information must be shared, even if the buyer does not explicitly ask about it.

At the same time, the duty to disclose does not mean that a seller must report every detail. It applies to relevant and known issues. What counts as relevant always depends on the specific property and situation.

How do the duty to investigate and the duty to disclose relate to each other?

The duty to investigate and the duty to disclose exist alongside each other and are meant to complement one another. Together, they clarify who is responsible for what during the purchase of a home.

In simple terms:

• The duty to investigate concerns what the buyer examines.

• The duty to disclose concerns what the seller must report.

In practice, this means that a buyer cannot simply assume everything is fine, while a seller cannot withhold relevant information. Both parties have their own responsibilities.

How these duties weigh against each other depends on the situation. Factors that are often considered include:

• What was visible to the buyer.

• What information the seller had.

• Whether there were signals that required extra attention.

• Whether relevant information was shared.

If a defect was clearly visible, the responsibility often lies with the buyer to ask questions or investigate further. If a problem was not visible and the seller was aware of it, the duty to disclose generally carries more weight.

The duty to investigate and the duty to disclose are therefore not opposites. They work together and are often assessed in combination, especially if a dispute arises after the purchase.

When does one duty wweigh more heavily than the other?

Whether the duty to investigate or the duty to disclose carries more weight always depends on the circumstances. There is no fixed rule that applies in every situation. The assessment focuses on what could reasonably be expected from both buyer and seller at that time.

When does the duty to investigate carry more weight?

The duty to investigate often plays a larger role when:

• A defect was visible during the viewing.

• There were clear signals that warranted further attention.

• Information was already available, for example in the listing.

• The buyer failed to ask follow-up questions.

In these situations, it is generally expected that the buyer takes initiative.

When does the duty to disclose carry more weight?

The duty to disclose carries more weight when:

• A defect was not visible.

• The seller was aware of the issue.

• The information could not reasonably be discovered by the buyer.

• The issue affects the decision to purchase.

In such cases, the seller is expected to actively share this information, even if the buyer does not explicitly ask for it.

Where does it often go wrong in practice?

In practice, disputes rarely arise because someone deliberately withholds information or ignores responsibilities. More often, problems are caused by misunderstandings, assumptions, or a lack of clarity during the buying process.

Common situations include:

• Buyers assuming that important information will be shared automatically.

• Sellers assuming that certain issues were obvious.

• Verbal explanations not being documented.

• Signals being interpreted differently.

• Expectations remaining unspoken.

During viewings, time pressure often plays a role. Homes sell quickly, conversations are brief, and important points may not be discussed in enough detail.

Later on, it may become clear that buyer and seller interpreted the same situation differently. Without documentation, it is difficult to determine what was actually discussed and what could reasonably have been expected.

That is why clarity matters. Not to assign blame, but to avoid misunderstandings and keep the buying process transparent for both parties.

Both the duty to investigate and the duty to disclose play an important role when buying a home. Together, they define how responsibility is shared between buyer and seller.

Confusion usually arises when these duties are mixed up or interpreted differently. What was visible, what was known, and how that information was handled ultimately makes the difference.

By being aware of both duties and dealing with them carefully during the buying process, you can prevent much uncertainty later on. It leads to clearer expectations, better decisions, and more peace of mind when purchasing a home.