Last Update: 04/18/16
Septic tanks are used as a part of a on-site home plumbing system because there’s no connection to a municipal or county septic system. A home septic tank system cannot be seen in a tour of a potential purchase; the system involves a big tank that is buried in the yard that holds the waste flushed into it from the home’s plumbing (sinks, toilets, tubs, etc.) and it is connected to a web, or network, of buried pipes that move the wastewater from the tank to the underground soil. The wastewater is treated in both the tank and the pipes and there is a lot of bacteria involved in the process.
Septic tank systems can work fine in Florida. However, problems with septic tanks as home plumbing systems can include odor as well as bad drainage in the yard and environmental hazards should the septic system drain into and impact Florida waterways.
Septic systems are built to specifications; if there have been additions to the home (additional bedrooms or bathrooms added to the original floorplan, for example) then the septic system may need expanding, as well.
Problems With Septic Systems
Septic systems also need proper maintenance and care. Neglected septic tanks are a problem waiting to happen. Other issues can arise with these systems, and a septic system inspection will reveal them to a potential buyer.
However, if a potential buyer is not made aware of the existence of a septic system and assumes that the home is part of the municipal or county sewer system, then that buyer will not know to get an inspection. Many buyers may not even know to ask.
(For example, only 8% of the homes in Broward County are serviced by septic systems; the other 92% of Broward residences are connected to community sewer systems. See, “You and Your Septic Tank,” a Broward County, Florida, publication.)
If septic system problems arise later, then what is the buyer’s recourse under Florida law?
Also, what if that buyer simply didn’t want to live in a home with a septic system? If the buyer was not told that the home was not on a shared sewer system but instead was serviced by an onsite septic system, then what can that unhappy buyer do?
Buyer Can Sue the Seller for Failure to Disclose
In Florida, the seller of the property (not the agent) is legally bound to disclose to the buyer all defects that impact the home’s fair market value of which the seller knows (if the seller isn’t aware of them, that’s a different story). This is usually accomplished through a “Property Disclosure Statement” which the real estate agent provides to the seller for the seller to fill out.
Almost always, these are completed on standardized forms provided by the Florida Association of Realtors®. The condition of the utilities provided to the residence, such as the septic system, should be part of the property disclosure prior to purchase and closing.
Additionally, Septic Tanks may need to be disclosed under local laws. For instance, county ordinances may require inspections of septic tanks on residential property by the county before the seller can close the sale with the buyer (Santa Rosa County Ordinance No. 2000-22, for example). In these situations, it is legally required for the seller to tell the buyer that the home has a septic system.
If the buyer was not informed of the septic system, and bought the home, then he or she may have a claim against the seller for failure to disclose. The existence and condition of the septic system is considered something that the seller of the property should disclose to the buyer as part of his or her duties in the real estate transaction.
Buyers of Homes With Septic Systems: Can They Sue the Real Estate Agent for False Advertising for Failure to Disclose the Septic System?
If the real estate agent undertook actions that were intentionally false, such as falsely advertising to the buyer that the home was on a municipal utility system and not on an on-site septic system, then depending upon the individual circumstances, the buyer may be able to seek damages against the real estate agent (and possibly the broker) under state consumer protection laws or under Florida common law tort actions such as fraud in the inducement. See, Hillcrest Pacific Corp. v. Yamamura, 727 So. 2d 1053 (Fla. 4th DCA 1999).
A good piece of advice is to at least speak with an experienced Florida real estate lawyer to learn about your rights. 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.
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