Duty to Disclose for Sellers in Florida Residential Real Estate Transactions – Are Florida Real Estate Buyers Protected by Florida Law?

Posted By on October 22, 2013

Last Update: 12/07/16

Disclosure of facts that materially affect the value of real estate doesn’t always happen in residential real estate sales because sellers fret that if the buyer hears something bad, they’ll walk away — or, counter with a price which is much lower than the listed sales price. Fortunately for buyers, Florida law requires that sellers disclose known defects involving Florida residential real estate; sellers who fail to disclose these defects will most likely be held to account under Florida’s real estate disclosure laws.
 

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Does a Florida seller have to disclose a copy of the HOA Rules? See Florida Statute 720.401.


 
In Florida residential real property transactions, sellers have a legal duty to disclose to someone who is considering purchasing a piece of real estate all known material facts about that property, as a general rule. Specific laws, in fact, have been passed to make sure that buyers are informed of especially important information, including things like property taxes – See Florida Statute 689.261.

Other issues, however, are not specifically required to be disclosed to the buyer under Florida law – for example Florida Statute 689.25 regarding disclosure of any homicide, suicide, deaths, or diagnosis of HIV or AIDS infection in an occupant of real property.

Florida Statute 689.25 states:

(1)(a) The fact that an occupant of real property is infected or has been infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome is not a material fact that must be disclosed in a real estate transaction.

(b) The fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide, or death is not a material fact that must be disclosed in a real estate transaction.
(2) A cause of action shall not arise against an owner of real property, his or her agent, an agent of a transferee of real property, or a person licensed under chapter 475 for the failure to disclose to the transferee that the property was or was suspected to have been the site of a homicide, suicide, or death or that an occupant of that property was infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome.

As explained by the Florida Supreme Court in Johnson v. Davis:

One should not be able to stand behind the impervious shield of caveat emptor and take advantage of another’s ignorance. Our courts have taken great strides since the days when the judicial emphasis was on rigid rules and ancient precedents. Modern concepts of justice and fair dealing have given our courts the opportunity and latitude to change legal precepts in order to conform to society’s needs. Thus, the tendency of the more recent cases has been to restrict rather than extend the doctrine of caveat emptor. The law appears to be working toward the ultimate conclusion that full disclosure of all material facts must be made whenever elementary fair conduct demands it.

Bottom line, in Florida, sellers of residential real estate have a duty to disclose most material information about the condition of the property (past and present) as well as repairs that have been done and repairs that need to be done (including things like termite damage, mold, Chinese drywall, leaky roofs, plumbing and electrical issues, structural damage, code violations, illegal additions, etc.). (Commercial real estate buyers traditionally do not get the same level of protection under Florida law. See the application of “caveat emptor” in Solorzano v. First Union Mortg. Corp.).

What Happens When Sellers Fail To Disclose in a Residential Real Estate Transaction?

When a buyer is not told about a material issue related to residential property in Florida, the buyer may have the right to rescind the deal and/or sue for money damages resulting from the failure to disclose (however, most standard form contracts now require most disputes to be mediated before litigation may commence – check your contract). This is true whether or not the failure to disclose was intentional or a mistake.

Additionally, Florida real estate lawyers see many “Errors & Omissions” claims on Real Estate Agent and Real Estate Broker’s insurance policies for being complicit in failing to disclose a defect or condition that is adjudged to be a material item.

Short answer: failures to disclose known material issues to residential real estate buyers in Florida often leads to lawsuits being filed. There are several statutory laws (both federal and state) that come into play here, along with Florida court cases (precedent). Environmental regulations established under federal law may even apply in Florida because of our unique natural resources and risks (e.g., the Everglades, Tribal lands, Hurricanes).

Therefore, in any Florida residential real estate transaction, it’s a good idea to have legal guidance before the contract is signed (both seller and buyer).  Doing so, insures that disclosures will be made and questions will be asked and answered so that both sellers and buyers leave the closing table happy and fully informed, and allowing them to move forward without potential claims and litigation in the future.

To this end, many realtors rely upon disclosure forms (such as this one or this one) to overcome any disclosure concerns, and they can be very helpful; however, in any instance where there may be a question or issue involving the disclosure of material information about Florida residential real estate on the part of either the seller or the buyer, seeking guidance from an experienced real estate lawyer before the contract is signed or the deal is closed to make sure that disclosure laws have been complied with is a prudent course of action than waiting to see what happens — nobody wants to have to file a lawsuit, or defend against one, down the road.  And, don’t let anyone tell you that you don’t need a lawyer or that a real estate form is “standard”.  Use your good judgment.  After all, you are spending a lot of money, so protect yourself.

A good piece of advice if you are buying or selling a home or condo and are worried about disclosure issues, is to speak with an experienced Florida real estate lawyer to learn about your rights before you sign a contract or close the transaction. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.

Also Read:

Disclosures to Home Buyers: Florida Statute 475.278 and the Real Estate Agent Relationship

What Disclosures Are Required in Florida Residential Real Estate Transactions? (Condo, HOA, etc.)

Property Disclosure Statements: Duty to Reveal Hazards in Florida Must Be Disclosed to Home Buyers (Flood Risks)

SEE ALL: Our Disclosure Related Articles

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Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.

 
 
 
 
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Comments

27 Responses to “Duty to Disclose for Sellers in Florida Residential Real Estate Transactions – Are Florida Real Estate Buyers Protected by Florida Law?”

  1. Gina says:

    I recently bought a property where the seller disclosed that the seawall was in fact in tact However during low tide I found out there was no seawall at all, Please advise

  2. We cannot answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  3. Went to bind the insurance on the future home which is to close in 2 weeks and found out that there was a claim still open from the seller….

  4. Danny Wilkins says:

    When a listing agent discloses they have ties to the seller and a personal interest in the property, can they be held liable for failure to disclose lack of permitting and mold issues found after closing?

  5. Hi Debbie,
    We cannot answer personal queries in blog post comments, so we’ve edited your comment to protect your personal information and ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  6. We cannot answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  7. Joe Agosto says:

    Hello. My fiance recently purchased a house in which a new a/c unit …Thank you for any info you can provide.

  8. Hi,
    We cannot answer personal queries in blog post comments, so we’ve edited your comment to protect your personal information and ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  9. Real Estate Laws: State of Florida | Aspect Purple says:

    […] You may read related stories at Florida Law. […]

  10. Richard W Wiernasz says:

    Recently purchased a Home in No Fla .Coming from the Northeast
    water issues were never discussed and the effect of not having a water conditioning system was never installed as this home is 10 yrs old and now the water heater,all the shutoff valves ,and shower heads and faucets have to be replaced ! As well as the install of a water conditioning system . Do i have recourse ?
    Regards

  11. Hi Richard,
    Hate to be frustrating, but we cannot answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.

    Thanks,
    Larry

  12. Seanna Galarza says:

    Need advise regarding failure to disclose.

    Thank you in advance.

  13. Hi Seanna,
    We’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.
    Thanks,
    Larry

  14. Debbie says:

    Is a Megan’s Law form required in a Florida real estate contract?

  15. Life Insurance Sales Leads Foreclosure Mortg - life insurance policy says:

    […] Duty To Disclose For Sellers In Florida Residential Real … – In residential real property transactions, Florida sellers have a legal duty to disclose to someone who is considering purchasing a piece of real estate all known … […]

  16. Kathy Burger says:

    Hi. I purchased a property, and now find that the rear of the property floods when there is a heavy rain. I don’t suppose this is something the seller or seller’s agent should have disclosed, …

  17. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.
    Thanks,
    Larry

  18. rob vachunek says:

    we just bought a refurbished house, all is good except the NEW 4 ton A/C. it doesnt cool the house. Is the seller responsible for the homes new and refurbished state of the home………4 days since we closed.

  19. Sorry to be frustrating! However, we’re not allowed to answer personal queries in blog comments, so we ask that you give our office a call (see the toll free number above?) for a chat.
    Thanks,
    Larry

  20. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.
    Thanks,
    Larry

  21. Kristin says:

    What is the notice period for Seller to provide such disclosure? I thought I would have gotten this by now – but …

    Please advise

  22. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat.
    Thanks,
    Larry

  23. Mechelle Huff says:

    I just purchased a home in July. Seller did not disclose ….

  24. Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, so we ask that you give our office a call (see the toll free number above?) for a chat. Your comment has been edited to protect your privacy.
    Thanks,
    Larry

  25. […] from property defects and not from nuisance claims, it is wise for sellers to be aware of their state requirements regarding full disclosure. A knowledgeable real estate agent can be your best friend, helping you […]

  26. John Watts says:

    very helpfull , thanks for sharing

  27. Will Hurricane Irma Lower Your Property Value? | C3 Group Inc. says:

    […] condition could be worse for policyholders looking to sell. In Florida property sellers have a legal duty to disclose to someone who is considering purchasing a piece of real estate all known material […]

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