Does a Home Buyer Have a Claim Because They Weren’t Told About a Problem with Their Home?

Posted By on August 5, 2014

Last Update: 1/1/16

What Type of Property Conditions Must Be Disclosed to Florida Home Buyers (And What Can Be Kept Hidden) Under Florida Law?

Under Florida law, a buyer can sue for damages, and  even rescind a transaction, where a seller or real estate agent doesn’t reveal a material problem with the home prior to purchase.  Unfortunately, there are also times when you can’t file a claim, leaving the buyer stuck.

 

The law also defines when you can sue and it identifies who may be be required to pay any damages i.e. seller, real estate agent, appraiser, inspector etc…

Florida Law Protects Home Buyers From Surprises

When you buy any piece of residential real estate in Florida there are laws on the books to protect the buyer from nasty surprises.  This protection may be surprising to people from other states because it’s “buyer beware!” in many jurisdictions outside of Florida.

It’s all about who bears the financial risk of home defects. In other states, the home buyer is solely responsible for determining the condition of his/her potential purchase without input from the Seller or other related parties. In Florida, it’s somewhat different.

In Florida, residential buyers are afforded protections.  Florida law places legal duties on others, including the Seller, to tell the buyer about known problems with a piece of property. Thus, if you buy a home in Florida and you learn after closing about a material problem with the property, then you may have a legal claim against the seller or real estate agent (and others).  Once you prove the party who knew about the defect breached their duty to you, the buyer, by not disclosing the defect, then the non-disclosing party(s) may be found to be financially responsible for remedying the problem with the home.

Who Can You Sue for Not Telling You About the Problem With The Home?

Almost always, this claim will be against the seller. However, you may also have a legal claim against others involved in the transaction, too. People like:

  • the seller’s real estate agent;
  • the seller’s real estate broker; and
  • the appraiser of the property.

They may all be jointly liable to you for financial damages resulting from their failure to tell you about the problem with the property before you bought it.

Sometimes, these defendants may be able to cover your financial injuries better than the seller of the property (they may have errors and omissions insurance a/k/a malpractice insurance).  It’s important to include them in your case if appropriate.

What Must Be Disclosed to the Florida Home Buyer

According to court cases (like Johnson v. Davis, 480 So.2d 625 (Fla. 1985)) and Florida statutes (like Florida Statute 689.261), home buyers can expect some things to be disclosed to them:

  • Property taxes on the property
  • Homeowner’s Association rules
  • Condominium Association rules
  • Risk of sinkholes
  • Past experience with termites or carpenter ants
  • Problems with structure or build, such as plumbing, roof, or central air conditioning system
  • Problems with mold, Chinese drywall, or other defects that can harm health of occupants

What about a buyer that is purchasing the home “As Is” from the seller?

In Florida, “as is” excuses the seller from paying for any repairs. It does NOT excuse the seller from any legal duty to disclose problems with the home. (See, Rayner vs. Wise Realty Co. of Tallahassee. )

What Does NOT Have to Be Revealed to the Buyer?

However, not everything has to be disclosed to the buyer in Florida. Under Florida law, for instance, there is NO legal duty to tell the home buyer that someone died there, even if they died by violent or criminal means in the residence.

What about murder or suicide?

The fact that someone died there, or even that a murder happened in the home, or someone committed suicide on the property, can be known by the seller. The seller can keep that troubling information from the buyer legally. (See Florida Section 689.25(1)(b))

Additionally, Florida buyers have no claim against anyone for failing to reveal that the prior occupants of their new home suffered from AIDS or were HIV-positive.

Seller Does Not Have Duty to Tell About Defects He/She Doesn’t Know Exists or About Minor Problems

Under Florida case law, sellers must reveal problems with the home that they know exist. Sellers are not required to investigate the property to learn about hidden defects on the buyer’s behalf (they don’t ask as an insurer of the buyer).

Furthermore, to win a case for failure to disclose the buyer must show that the defect is “material” and not a minor detail.

“The materiality of a fact is to be determined objectively by focusing on the relationship between the undisclosed fact and the value of the property. To be actionable, an undisclosed fact must materially affect the value of the property,” Billian v. Mobil Corp.

Get Legal Advice If You Have a Problem With Your New Florida Home Purchase

If you recently bought a Florida home and have discovered something wrong with the property you should determine if the seller, or the seller’s real estate agent and broker, among others, is responsible to correct the problem.  That will depend on the answer to some questions, including;

  • Is it a material issue?
  • Is it covered under Florida’s disclosure laws?
  • Can you collect money from them?

Answers to these questions depend upon the facts of your situation. Believe it or not, things like federal statutes may also come into play (e.g., lead disclosures for pre-1978 homes). An experienced Florida real estate lawyer can be very helpful to unhappy buyers in Florida, but the buyer has to pick up the phone and ask.

Picture of Larry Tolchinsky

Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Comments

15 Responses to “Does a Home Buyer Have a Claim Because They Weren’t Told About a Problem with Their Home?”

  1. How does a seller disclose risk of sinkholes if they never had a sinkhole? How is a seller or a real estate agent an authority on soil types in the neighborhood? To disclose sinkhole risk wouldn’t one need an engineer report from an expert on the neighborhood? Sinkholes are all over Florida.

    I can understand a seller disclosing a sink hole problem with their own property, but how would you know what you were talking about on a neighbors property if you didn’t view or have the engineer report in hand?

  2. Hi Dawn. Great questions. Sinkholes and the duty to disclose them — instead of rambling on in a comment here, stay tuned for an upcoming blog post!
    Thanks, Larry

  3. Evelia says:

    Seller and the real estate agent neglected to tell us this house has a sink hole claim ….

  4. Hi Evelia,
    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. (We removed your personal info in the comment for your privacy and protection.)

    Thanks,
    Larry

  5. Sue says:

    Can you sue for non disclousure of Polybulene pipes

  6. […] attention to disadvantages like small bedrooms or a tiny yard. Staging was never meant to hide problems with the home. Damaged walls should be fixed, not simply painted. While broken and cracked windows should be […]

  7. Hi Sue,
    Sorry if this is frustrating! However, we’re not allowed to answer personal queries in blog post comments, and this seems to be a personal question (maybe?) so we ask that you give our office a call (see the toll free number above?) for a chat about your situation.
    Thanks,
    Larry

  8. Robert says:

    Are modifications to the original layout required to be reported?

  9. 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 about your situation. Your comment has been edited to protect your privacy.
    Thanks,
    Larry

  10. Paulo says:

    Hi Larry,
    I bought a condo in Florida in a newer building. After moving into my unit I started noticing noises from my neighbors coming through the building shared party walls as well through my ceilings. I have addressed the issue several times to our condo association but they reused to acknowledge such noises as nuisances. They qualified them as regular and standard condominium noises.
    I am selling the unit now. Do I have to disclose this issue to my buyers?
    The former seller and his realtor never disclosed anything about it to me as a buyer.
    Thank you for your time.

  11. 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 about your situation.
    Thanks,
    Larry

  12. fran says:

    We did the walkthrough a day before the closing date. The house was vacant so we were able to see the floors. The description of the home said “hard wood floors” and the sellers’ realtor said that it was “engineered hard wood floors”. And to our surprise, we found a box in the garage with laminate floors. The kitchen floor has a bubbly water damage, including the living and family room, along with some scratches in the master bedroom; all which were not visible before due to the furniture being there. We also found other hidden issues that were not disclosed before the walkthrough. The sellers’ realtor said that she wasn’t going to do anything. What can I do? Do I have any rights that can protect me? Please advise, thank you

  13. Mark Semkiw says:

    I was in the process of buying HUD property in which the underwriter wanted a structual engineer report discribing the structual soundness of said property before approving the loan (i.e. there was extensive termite damage). HUD’s selling agent recommended the structual engineer whom in turn we hired to complete the inspection.

    The contractor who performed the inspection claimed to be a structual engineer but it turns out he is only a contractor.

    The home was scheduled to close in 4 days but due to this guy falsifying his credentials the mortgage contract will expire before i can remedy his falsification.

    What are my legal options against this guy who caused me to lose this home purchase?

  14. 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 about your situation.
    Thanks,
    Larry

  15. 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 about your situation.
    Thanks,
    Larry

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