Duty to Disclose for Sellers in Florida Residential Real …

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Posted By Larry Tolchinsky on October 22, 2013

Last Update: 2/27/18

Disclosure of facts that materially affect the value of real estate doesnt always happen in residential real estate sales because sellers fret that if the buyer hears something bad, theyll walk away or, counter with a price which is much lower than the listed sales price. Fortunately for buyers, Florida law requires that sellers disclose known defects involving Florida residential real estate; sellers who fail to disclose these defects will most likely be held to account under Floridas real estate disclosure laws.

Does a Florida seller have to disclose a copy of the HOA Rules? See Florida Statute 720.401.

Other issues, however, are not specifically required to be disclosed to the buyer under Florida law for example Florida Statute 689.25 regarding disclosure of any homicide, suicide, deaths, or diagnosis of HIV or AIDS infection in an occupant of real property.

Florida Statute 689.25 states:

(1)(a)The fact that an occupant of real property is infected or has been infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome is not a material fact that must be disclosed in a real estate transaction.

(b)The fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide, or death is not a material fact that must be disclosed in a real estate transaction.(2)A cause of action shall not arise against an owner of real property, his or her agent, an agent of a transferee of real property, or a person licensed under chapter 475 for the failure to disclose to the transferee that the property was or was suspected to have been the site of a homicide, suicide, or death or that an occupant of that property was infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome.

As explained by the Florida Supreme Court in Johnson v. Davis:

One should not be able to stand behind the impervious shield of caveat emptor and take advantage of anothers ignorance. Our courts have taken great strides since the days when the judicial emphasis was on rigid rules and ancient precedents. Modern concepts of justice and fair dealing have given our courts the opportunity and latitude to change legal precepts in order to conform to societys needs. Thus, the tendency of the more recent cases has been to restrict rather than extend the doctrine of caveat emptor. The law appears to be working toward the ultimate conclusion that full disclosure of all material facts must be made whenever elementary fair conduct demands it.

Bottom line, in Florida, sellers of residential real estate have a duty to disclose most material information about the condition of the property (past and present) as well as repairs that have been done and repairs that need to be done (including things like termite damage, mold, Chinese drywall, leaky roofs, plumbing and electrical issues, structural damage, code violations, illegal additions, etc.). (Commercial real estate buyers traditionally do not get the same level of protection under Florida law. See the application of caveat emptor in Solorzano v. First Union Mortg. Corp.).

What Happens When Sellers Fail To Disclose in a Residential Real Estate Transaction?

When a buyer is not told about a material issue related to residential property in Florida, the buyer may have the right to rescind the deal and/or sue for money damages resulting from the failure to disclose (however, most standard form contracts now require most disputes to be mediated before litigation may commence check your contract). This is true whether or not the failure to disclose was intentional or a mistake.

Additionally, Florida real estate lawyers see many Errors & Omissions claims on Real Estate Agent and Real Estate Brokers insurance policies for being complicit in failing to disclose a defect or condition that is adjudged to be a material item.

Short answer: failures to disclose known material issues to residential real estate buyers in Florida often leads to lawsuits being filed. There are several statutory laws (both federal and state) that come into play here, along with Florida court cases (precedent). Environmental regulations established under federal law may even apply in Florida because of our unique natural resources and risks (e.g., the Everglades, Tribal lands, Hurricanes).

Therefore, in any Florida residential real estate transaction, its a good idea to have legal guidance before the contract is signed (both seller and buyer). Doing so, insures that disclosures will be made and questions will be asked and answered so that both sellers and buyers leave the closing table happy and fully informed, and allowing them to move forward without potential claims and litigation in the future.

To this end, many realtors rely upon disclosure forms (such as this one) to overcome any disclosure concerns, and they can be very helpful; however, in any instance where there may be a question or issue involving the disclosure of material information about Florida residential real estate on the part of either the seller or the buyer, seeking guidance from an experienced real estate lawyer before the contract is signed or the deal is closed to make sure that disclosure laws have been complied with is a prudent course of action than waiting to see what happens nobody wants to have to file a lawsuit, or defend against one, down the road. And, dont let anyone tell you that you dont need a lawyer or that a real estate form is standard. Use your good judgment. After all, you are spending a lot of money, so protect yourself.

A good piece of advice if you are buying or selling a home or condo and are worried about disclosure issues, is to speak with an experienced Florida real estate lawyer to learn about your rights before you sign a contract or close the transaction. 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.

Also Read:

Disclosures to Home Buyers: Florida Statute 475.278 and the Real Estate Agent Relationship

What Disclosures Are Required in Florida Residential Real Estate Transactions? (Condo, HOA, etc.)

Property Disclosure Statements: Duty to Reveal Hazards in Florida Must Be Disclosed to Home Buyers (Flood Risks)

SEE ALL: Our Disclosure Related Articles


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Tags: Florida Condo Law, Florida Condominium, Florida disclosure laws, Florida Homestead, Florida Real Estate, Florida residential real estate

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