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Last Update: 12/20/22

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 known material problem with the home prior to purchase.  Unfortunately, there are also times when you can’t file a claim, leaving the buyer stuck with a defective home.

 

The law also defines when you can file a lawsuit and it identifies who may be required to pay 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 protection.  Florida law places legal duties on others, including the Seller, to tell or to disclose to the buyer about known problems with residential real estate. Thus, if you buy a home in Florida (including condos and townhomes) 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 known 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 building, such as plumbing, roof, or central air conditioning system
  • Problems with mold, Chinese drywall, or other defects that can harm the 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 known 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 a Duty to Disclose Defects He/She Doesn’t Know Exist 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 act 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 or reimburse you to repair or remediate the problem.  That will depend on the answer to some questions, including;

  • Is the repair or defect a material issue?
  • Can we prove the seller knew about the material issue?
  • Is the issue covered under Florida’s disclosure laws?
  • Did the seller provide a fraudulent seller disclosure statement?
  • Can you collect money from the seller and/or the other responsible parties?
  • Would the repair or defect be found by a proper home inspection?

We know that the answers to these questions are rarely a simple “yes” or “no”, and every fact pattern is unique. In some instances, federal law may also apply to these cases (e.g., lead disclosures for pre-1978 homes, radon gas issues, etc.). An experienced Florida real estate lawyer can be very helpful to unhappy buyers in Florida, but the buyer has some important questions to answer before a seller, or others, can be held liable for any known defects or repairs. (Please note, we do not take these cases on a contingency basis.)

Picture of Larry TolchinskyDo 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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