Florida, like many other states, requires sellers of homes and residential properties to make certain disclosures to buyers about the property’s condition and history.
It’s based on the fact that sellers are in the best position to know all material facts relating to their properties, especially those that are not visible to the naked eye and should disclose these to the buyer. Sellers who fail to do so face legal liability.
What Florida Law Requires Regarding Disclosures
Florida case law provides that, with some exceptions, a home seller must disclose any facts or conditions about the property that has a substantial impact on its value or desirability and that others cannot easily see for themselves. This originally came from the court case of Johnson v. Davis, 480 So.2d 625 (Fla. 1985).
In addition, Florida statutes set out some specific requirements, which include that sellers disclose:
- the dangers associated with radon gas, which occurs naturally and is often found in buildings in Florida (Florida Statutes §404.056(5))
- if selling coastal property, the potential for erosion, and that the property might be subject to regulations regarding construction, rigid coastal protection structures, beach nourishment, and the protection of marine turtles (Florida Statutes §161.57)
- if the property is in a community governed by a condo or homeowner’s association, information about the mandatory membership, the requirement to pay monthly or quarterly fees as well as assessments, and what documents contain more details about the association and its rules (Florida Statutes §720.401); and there’s a similar statute specifically for condominiums (Florida Statutes §718.503), and
- a property tax summary containing statutory language essentially stating that a buyer cannot assume that the amount of property taxes currently paid by the seller will remain the same after the sale and that making improvements could trigger a reassessment (Fla. Stat. § 689.261).
How Florida Sellers Make Disclosures to Prospective Home Buyers
To assist sellers in making the relevant disclosures, the Florida Association of Realtors® provides a standard form, which covers many common property characteristics about which buyers want to know. (This is separate from the standard contract that is used in most residential real estate transactions to bring about the purchase and sale of the home. Also, that contract is typically where the property-tax disclosure described above is made.)
The categories covered on the standard Florida disclosure form include, for example:
- whether any actual or potential legal claims, complaints, or court proceedings affect the property
- whether any disputes have arisen regarding the property’s boundaries
- whether the property contains any past or present sinkholes (a particular hazard in Florida)
- whether the property contains any environmental hazards such as asbestos, lead, mold, defective drywall (another hot-button problem in Florida), and others
- whether any infestations or damage have occurred from wood-destroying organisms such as termites or from fungi, and
- whether there are any problems with structural and other essential components of the home, such as the roof, plumbing, electrical wiring, major appliances, HVAC, and more.
Some legal experts maintain that, as a seller, you may make disclosures either verbally (with some statutory exceptions) or in writing. Florida law does not definitively require all disclosures to be in writing. However, if you make oral disclosures without any written confirmation, you could have a difficult time proving later that you made them, which is especially problematic if the buyer purchases the property and later finds problems. As a commonsense measure, it’s best to make your property disclosures in writing.
Limits on Risks Faced by Florida Home Sellers Making Disclosures
Don’t worry that you will be expected to know or learn about and disclose every minute detail of your home’s condition. Florida courts have attempted to protect home sellers from fear of being sued every time they sell their properties.
Sellers in Florida are certainly not expected to guarantee to buyers that their properties are defect-free, which would be an impossible promise to make in most cases. In addition, Florida courts have declared that home sellers will not be held responsible for property defects of which they had no actual knowledge.
See, for example, the court case of Jensen v. Bailey, 76 So.3d 980 (Fla. 2nd DCA 2011), in which the sellers had stated in their written disclosures that no additions or alterations to the property violated building codes. After the purchasers moved in, they discovered that several alterations made to the master bath, kitchen, and bedroom did not comply with building codes. The buyers sued. The court ruled for the sellers, finding that they didn’t apparently know about the violations, having (like many homeowners) left compliance matters to their contractors.
If you sell a Florida property, and the buyer later claims in court to have discovered a defect that you did not properly disclose, that buyer must be able to demonstrate that:
- you knew about the property defect
- the defect has a substantial impact on the value of the property
- the buyer did not, upon purchase, know about the defect
- the defect would not have been easy for the buyer to detect, and
- you did not tell the buyer about the defect.
Nevertheless, making complete disclosure regarding matters that you DO know about can help build trust and avoid later lawsuits.
Facts About a Property That Sellers Need Not Disclose
There are a number of property conditions that Florida sellers (and their agents) are not required to disclose, no matter how unappealing they might be to some buyers. As a Florida seller you are not (under Florida Statutes § 689.25) required to disclose:
- that the property has been inhabited by a person infected with HIV or AIDS, or
- that murder, suicide, or death has occurred or is suspected to have occurred on the property.
You are fortunate to have the benefit of this law, as these conditions might very well be a dealbreaker for some buyers or a basis for them to demand a drastic reduction in your asking price.
But what if the buyer asks about these issues? Florida law merely states that you do not indicate how you should answer if directly asked. As a practical matter, silence (for example, “The law does not require me to disclose such information”) is probably the best policy; or honesty if it won’t impact the privacy of previous inhabitants. If a buyer asks and you make a misleading or false statement, the buyer might seek legal relief against you on such grounds as misrepresentation.
How Federal Guidelines Affect Florida Real Estate Transactions
A few federal regulations also govern real estate disclosures in every state. For example, if your home was built prior to 1978, you must disclose any known existence of lead-based paint. (The federal lead disclosure requirements are found at 42 U.S.C.A. §§ 4851-56.)
According to the Environmental Protection Agency (EPA), you must also provide an EPA-approved pamphlet addressing lead-based paint hazards. Further, you must include language in the real estate contract entitled “Lead Warning Statement” declaring that you have met all notification requirements.
If Selling Your House “As-Is,” You Still Need to Disclose
If the buyer agrees, you have the option of selling your home “as-is.” That means that the buyer agrees to take the property in its existing condition without your having to make any further repairs or improvements to it.
However, a so-called “as-is” clause does not relieve you from your disclosure duties under Florida law. You will still need to advise buyers of all material defects that you know about concerning the property.
When In Doubt, Consult a Professional
Real estate transactions can be complex, and provide ample room for disagreement between the parties. To successfully navigate these murky waters, it is wise to consult with a Florida attorney with solid real estate experience.
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