Last Update: 02/22/16
Here you are, a ready, willing and able buyer who has finally found that Florida condo, townhouse, or home of your dreams. You are excited about closing the deal and moving into your new South Florida home. It’s a great time, no more spending hours conducting online searches and car rides with your real estate agent, roaming through properties.
Now comes the “closing process.” This is the time when you, as the buyer, and the seller iron out all of the details of the purchase and sale. For the buyer, this is the time when they investigate and learn as much as possible about the property — the physical structure, the chain of title, and municipal and other governmental and quasi- governmental issues— before they finalize their purchase.
Examining Disclosure Statements
One way that a Florida buyer learns is through the examination of disclosure statements. Sellers of residential property are required by law to disclose all sorts of things to their buyers. (see our earlier article about pre-printed disclosures that are normally attached and incorporated into most Florida residential real estate contracts, and our article about disclosures made by sellers by answering questions about the property, which is sometimes, but not always, given to a buyer, and our article about disclosures related to the role of a real estate professional in a residential real estate transaction.)
Disclosures help buyers learn about things like flood zones, sewer systems, property taxes, and much more. Disclosures help the sellers, too: by disclosing things up front, the seller protects him or herself from any future legal claim for a hidden defect or problem with the property.
Are All Of These Disclosure Documents Protecting The Buyer?
Some real estate professionals have their own internal forms that they have buyers sign before a closing occurs. These forms look pretty standard, but they are written in a way that has the buyer acknowledging seller disclosures, which may sound odd to some. Are these internal disclosure forms protecting the real estate professional from a future claim or are they designed to help the buyer?
The disclosure document usually has a warning that is printed directly above or below the signature line that contains language as follows (or something close to it):
If you do not understand some point, please ask us to explain it and do not sign any document until you clearly understand it. If you are not satisfied with any explanation provided, you are encouraged to consult a real estate attorney.
BY SIGNATURE BELOW, BUYER IS ACKNOWLEDGING THAT BUYER HAS READ AND UNDERSTANDS THE ABOVE DISCLOSURES PRIOR TO EXECUTION OF THE CONTRACT FOR SALE AND PURCHASE.
8 Disclosures That Buyers Are Sometimes Asked To Acknowledge:
1. Radon Gas
It is disclosed to the buyer that radon gas is toxic and radioactive. It is a health hazard. It occurs naturally here in Florida. Radon and radon testing can be done by the local public health unit of the county where the property is located if the buyer is concerned. Florida Statute 404.056(8).
2. Energy Efficiency
Buyers can also have the property tested for energy efficiency tested, and receive a Florida Building Energy-Efficiency Rating System Information Brochure, pursuant to Florida Statute 553.996.
3. Property Taxes
Buyers need to double check how much they will be responsible for in property taxes before they close. The seller may provide their current property taxes, but buyers need to know that tax may change after the closing. A change of ownership recorded down with the clerk’s office may mean the taxes are reassessed and the property tax assessment goes up. Buyers should check with the property appraiser in the county where the property is located for details.
4. Schools and School Zones
Buyers need to check with the board of directors for the school district for details including grade level caps and school zones.
5. Square Footage of the Property
If the buyer wants to know what the exact square footage of the improvements on the property, then they have the right to go and measure it for themselves before closing. The seller may want the buyer to sign a written acknowledgment in the Disclosure Statement that the buyer has not relied upon the seller (or the broker) for estimates of the square footage.
Brokers and sellers in Florida can disclose to the buyer that they do not guarantee or warrant the property’s condition. They will disclose this and ask that the broker acknowledge in writing via the Disclosure Statement that they seller (and the broker) are not responsible for the condition of the property. This limits their liability if there’s a problem after closing.
And it is disclosed that the buyer understands he or she should get all the inspections that seem prudent, including those listed in the Contract for Sale and Purchase. It will be up to the buyer to find the inspectors to conduct inspections. They need to find qualified, independent professionals.
7. Land Use Disclaimer
Land use is controlled by local, state, and federal law. You cannot open a restaurant in the middle of a condo tower, for example. However, these land use regulations change all the time here in Florida, reacting to changing needs of the local economy.
Which means that buyers will be asked to recognize in the Disclosure Statement that it is the buyer’s duty to find out the current land use for the property as well as recognizing that the city (or country) Comprehensive Land Use Plan applies to it. The buyer needs to know if the property lies within city limits or not, and only county land use laws apply.
Land use is also impacted by covenants in the deed, zoning laws, and other real estate use restrictions. It’s the buyer’s job to investigate what these are and to understand them. The seller and their broker and agent will ask that the buyer acknowledge that they have made no representations for land use, that investigating land use is the buyer’s duty, and that the buyer releases them all from any statements they may have made for land use of the property. This limits their liability if there’s a problem after closing.
8. Road and Drainage Maintenance
The buyer will also be asked to acknowledge that he or she is responsible for keeping up (maintain and repair) all the roads and water drainage for the property unless an easement exists where there is a government agency that controls and owns them and has legal responsibility for their maintenance.
What Should You Do?
Disclosure statements are important for various reasons including sometimes being used as part of a misrepresentation claim against a real estate broker (and its agent). Having a Florida real estate lawyer review the disclosure statements (and requiring the seller to provide answers to questions about the condition of the property) before closing is normally a wise decision and not as expensive as many assume it to be.
A good piece of advice when you and your family are purchasing or selling your family home in one of the biggest transactions of your life is to at least talk with a Florida real estate lawyer. Getting someone to review all of the paperwork isn’t as costly as most of us think it is. And, it’s always a lot cheaper than paying to fix a problem after a closing occurs. 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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