Seller Didn’t Disclose Problems With the House: What Are Your Rights in Florida?

In this article, we’ll break down:

• What Florida law requires sellers to disclose
• The most common problems sellers hide from buyers
• What “as is” really means under Florida law
• Who you can sue: seller, agent, broker, or appraiser
• What you need to prove to win your case
• What to do right now if you discovered a problem after closing

You Bought a Home and Now You Have Found a Problem the Seller Never Mentioned

It happens more often than most people realize. You close on a house, move in, and then discover something seriously wrong with the property: water damage behind the walls, a failing septic system, mold in the attic, foundation cracks that were painted over, or a roof that is clearly not as solid as the seller claimed. You start asking questions and it becomes clear the seller knew about this before you signed the contract. They just never told you nor did they disclose this information in the seller’s disclosure form.

Florida law has something to say about that. Unlike many states where buyers are largely on their own to discover defects, Florida places a legal duty on sellers to disclose known material problems with a home before it is sold. When a seller violates that duty, the buyer may have a legal claim for damages or even the right to rescind the transaction entirely.

Larry Tolchinsky has handled home buyer claims against sellers and real estate agents throughout Florida since 1994. If you discovered a problem your seller knew about and never told you, here is what you need to know.

What Florida Law Requires Sellers to Disclose

Florida is a disclosure state. That means sellers of residential real estate have a legal duty to tell buyers about known material defects in the property before the sale closes. This duty comes from Florida court decisions going back to the landmark case of Johnson v. Davis, 480 So.2d 625 (Fla. 1985), as well as from Florida statutes including Florida Statute 689.261.

The key word is “material.” A defect is material if it would significantly affect the value of the property or the buyer’s decision to purchase it. Under Florida law, sellers are required to disclose known problems including:

• Structural problems including foundation issues, roof defects, and load-bearing wall damage
• Water intrusion, water damage, and flooding history
• Mold, Chinese drywall, or other conditions that can harm the health of occupants
• Termite or pest damage and prior pest treatment history
• Plumbing, electrical, and HVAC problems
• Septic system issues or failures
• Sinkhole risk or prior sinkhole activity on the property
• Code violations, unpermitted construction, and illegal additions
• Homeowner’s Association and condominium association rules and fees
• Property tax information under Florida Statute 689.261

The duty to disclose applies whether or not the seller thinks the buyer will find out on their own during inspection. If the seller knows about it and it is material, they are required to disclose it.

Read: Seller’s Duty to Disclose in Florida Real Estate Transactions

The Most Common Problems Sellers Hide From Buyers

Based on years of handling these claims, the defects that sellers most commonly fail to disclose fall into a few recurring categories.

Water damage and flooding. Sellers who have had water intrusion, roof leaks, or flooding often paint over the evidence, replace visible materials, and say nothing. Water damage behind walls, under flooring, or in attic spaces is one of the hardest things for a buyer to discover during a standard home inspection, which is precisely why sellers who want to hide it can do so successfully.

Mold. Mold that has been remediated or concealed is one of the most common undisclosed defects in Florida. A seller who paid for mold remediation, had mold disclosed in a prior inspection, or knows that water intrusion has created conditions for mold growth is required to tell you about it. A fresh coat of paint and new drywall does not discharge that duty.

Septic system problems. Sellers who know the septic system is failing, undersized for the home, or not properly permitted sometimes hope the buyer will not discover the problem until after closing. Septic failures can cost tens of thousands of dollars to repair or replace.

Foundation and structural issues. Cracks in the foundation, settling, sinkholes, and structural deficiencies are among the most expensive defects a buyer can discover after closing. Sellers who have had engineering reports, prior insurance claims, or visible evidence of structural problems and have not disclosed them face significant legal exposure.

Roof defects. A seller who knows the roof is at the end of its useful life, has active leaks, or failed a prior inspection may choose to say nothing rather than renegotiate the price. Florida’s climate makes roofing one of the most critical and expensive systems in any home.

Unpermitted work and code violations. Construction done without permits, additions that were never inspected, and code violations that exist on the property records are all material facts that must be disclosed. Buyers who discover unpermitted work after closing may be required to bring the work up to code at their own expense or be denied insurance coverage.

What “As Is” Really Means Under Florida Law

One of the most common misconceptions among Florida home buyers is that an “as is” sale means the seller has no duty to disclose anything. That is incorrect.

Under Florida law, an “as is” clause excuses the seller from paying for repairs. It does not excuse the seller from disclosing known defects. The duty to disclose material problems exists independently of whatever the contract says about repairs. A seller who sells a home “as is” while knowingly concealing a material defect is still liable for that concealment.

The Florida courts addressed this directly in Rayner v. Wise Realty Co. of Tallahassee. The principle is clear: you can sell the property without agreeing to fix problems, but you cannot hide problems you know about.

Read: Concealment, Nondisclosure and Silence by Florida Real Estate Sellers

Who You Can Sue: Seller, Agent, Broker, or Appraiser

In most cases the primary defendant is the seller. However, Florida law allows buyers to bring claims against others who participated in the transaction and who knew about or should have known about the undisclosed defect.

The seller’s real estate agent. Florida law places disclosure duties on the seller’s agent as well as the seller. A listing agent who was aware of a defect and said nothing, or who actively helped the seller conceal it, can be held jointly liable. Real estate agents in Florida carry errors and omissions insurance, which may make them a more financially practical defendant than the seller alone.

The seller’s real estate broker. The broker employing the listing agent may also be liable depending on the circumstances and the broker’s knowledge.

The appraiser. In some cases an appraiser who was aware of a material defect and failed to account for it in the appraisal report may also have liability.

It is important to identify all potentially liable parties early, because some of them may have insurance coverage that makes recovery more realistic. Larry Tolchinsky evaluates which parties to include in a claim as part of the free initial consultation.

Read: Did Your Florida Home Seller Fail to Disclose a Defect? You May Have a Claim

What You Need to Prove to Win Your Case

Florida courts require a buyer to establish four specific things to succeed on a concealment or nondisclosure claim. Based on Johnson v. Davis and Jensen v. Bailey, 76 So. 3d 980, you must show:

1. The seller had knowledge of the defect before the sale closed.
2. The defect materially affects the value of the property.
3. The defect was not readily observable and was not known to you as the buyer.
4. The seller failed to disclose the defect to you before closing.

The hardest element to prove is typically the first one: establishing that the seller actually knew about the problem before closing. Evidence that supports seller knowledge includes prior inspection reports, insurance claims filed while the seller owned the property, contractor invoices for related work, neighbor testimony, and email or text communications between the seller and their agent.

The damage to the value of the property must also be proven with real numbers, not speculation. In most cases this means an expert assessment of the cost to repair the defect and the impact on the property’s market value.

What to Do Right Now If You Discovered a Problem After Closing

If you have recently discovered a problem in your Florida home that you believe the seller knew about and failed to disclose, take the following steps before doing anything else.

Document everything immediately. Photograph and video the defect in its current condition. Do not repair or remediate anything until you have preserved a full photographic record of what you found and where you found it. Once the evidence is repaired or covered up, proving the seller’s knowledge becomes significantly harder.

Gather the seller’s disclosure documents. Pull out the seller’s disclosure statement that was provided at or before closing. If the seller failed to disclose something they were required to disclose, that document is evidence of the concealment.

Request all prior inspection reports. Ask your real estate agent for any inspection reports that were provided as part of the transaction. If the seller had their own inspection done before listing the property, that report may show they had prior knowledge of the defect.

Get an independent assessment of the damage. Have a licensed contractor, engineer, or specialist evaluate the defect and put their findings in writing. You will need an expert to testify about the nature of the defect, how long it likely existed, and what it will cost to repair.

Act within the statute of limitations. Florida law imposes time limits on these claims. Do not wait to see if the problem gets worse or to try to resolve it yourself. Contact a Florida real estate attorney as soon as possible to protect your rights.

Do You Have Questions or Comments?

Then please feel free to send Larry an email or call him now at (954) 458-8655. If you found this information helpful, please share this article and bookmark it for your future reference.

This article is for informational purposes only and should not be relied upon as legal advice. Florida real estate law does change over time and the facts of each case are unique, which can significantly impact the outcome. We strongly recommend speaking with an experienced Florida real estate lawyer about your specific situation before taking any action.