What are Home Seller Disclosure Obligations in Florida?

Florida home sellers are legally required to disclose all known facts that materially affect the value of the property being sold and that are not readily observable or known by the buyer.

Examples of mandatory disclosure items include known defects or issues with a property’s roof, foundation, electrical, plumbing, mechanical systems. Additional examples include violations, disputes, litigation and environmental hazards such as lead, asbestos, mold and insect infestations or underground storage tanks.

Florida home sellers must disclose all known facts that materially affect the value of the property and that are not readily observable by the buyer.

This obligation has been in effect since the Johnson vs. Davis ruling in 1985, where the Florida Supreme Court held that “where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used.”

Note that sellers are only obligated to disclose what they actually know. A seller might not know about all material or significant items, in which case the seller will not run afoul of Florida’s seller disclosure requirements.

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Moreover, a seller in Florida is not obligated to disclose obvious defects that are readily observable to a buyer. For example, a seller who doesn’t disclose the presence of a large hole in the living room wall isn’t violating disclosure laws since the defect is readily observable to the buyer.

Most sellers in Florida utilize the Seller’s Property Disclosure Form created by the Florida Association of Realtors in order to facilitate compliance with disclosure laws. There are two versions: ‘Residential’ and ‘Condo’.

It’s important to keep in mind that there is no statutory requirement to use one of these forms, or for the seller to complete any disclosure form.

Moreover, the use of a standard disclosure form may not address every significant issue that is unique to a particular property.

Are sellers in Florida required to complete a property disclosure form?

There is no statutory requirement for a Florida home seller to complete a property disclosure form. However, completing a property disclosure form is a prudent course of action for sellers as it facilitates compliance and mitigates the risk of running afoul of disclosure laws. 

However, the act of completing a property disclosure form does not indemnify a seller against omissions. This is because a standard disclosure form may not capture all items pertaining to a specific property.

Are Florida sellers required to conduct a home inspection?

Florida sellers are not required to hire a home inspector to check for items which the seller may not be aware of.

Seller disclosure obligations in Florida only cover known facts. If a seller isn’t aware of something, they’re not on the hook for failing to disclose it.

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What are material defects under Florida disclosure laws?

Examples of material defects include known defects or issues with a property’s roof, foundation, electrical, plumbing, mechanical systems. 

Additional examples include violations, disputes, litigation and environmental hazards such as lead, asbestos, mold and insect infestations.

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What are latent defects and must they be disclosed in Florida?

Latent defects are defects or problems that are not immediately apparent or visible to the naked eye upon inspection or examination of a property.

Latent defects may include issues such as hidden structural damage, faulty wiring or plumbing, or the presence of hazardous materials such as lead or asbestos.

Florida home sellers are required to disclose known latent defects to a prospective purchaser.

Is a Florida home being sold ‘as-is’ exempt from seller disclosure laws?

No, a Florida home being sold “As-is” is not exempt from seller disclosure laws. A seller is still required to disclose any known defects or issues with the property even if the home is being sold “as-is”.

Failure to disclose known defects can result in legal liability for the seller, even in the case of an as-is home sale.

What are seller disclosure obligations in the event something changes?

A Florida home seller is required to promptly notify the buyer if previously disclosed information becomes inaccurate or incorrect. 

The easiest way to do this is by completing the standard ‘Seller’s Property Disclosure Update’ form created by the Florida Association of Realtors.

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Are Florida sellers required to disclose HIV or a homicide, suicide or death?

No. Under Florida Statute §689.25, neither a prior homicide, suicide or death nor an occupant’s HIV diagnosis are considered material facts that must be disclosed in a real estate transaction.

Florida Statute §689.25: Failure to disclose homicide, suicide, deaths, or diagnosis of HIV or AIDS infection in an occupant of real property.

(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.

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What additional real estate disclosure obligations exist in Florida?

Florida law mandates several additional disclosure obligations for home sellers and real estate agents.

Radon

Florida Statute §404.056(5) requires sellers to present buyers with a radon gas disclosure on at least one document, form, or application executed at the time of, or prior to, contract for sale and purchase of any building.

The specific disclosure language contained in Florida Statute §404.056(5) is shown below:

RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.

Coastal Properties

Florida Statute §161.57 requires sellers of property located partially or totally seaward of the coastal construction control line to provide prospective purchasers with a written disclosure at or prior to the time a seller and a purchaser sign a contract.

The specific disclosure language contained in Florida Statute §161.57 is shown below:

The property being purchased may be subject to coastal erosion and to federal, state, or local regulations that govern coastal property, including the delineation of the coastal construction control line, rigid coastal protection structures, beach nourishment, and the protection of marine turtles. Additional information can be obtained from the Florida Department of Environmental Protection, including whether there are significant erosion conditions associated with the shoreline of the property being purchased.

Additionally and unless otherwise waived in writing by the purchaser, at or prior to the closing of any transaction where an interest in real property located either partially or totally seaward of the coastal construction control line is being transferred, the seller shall provide to the purchaser an affidavit, or a survey delineating the location of the coastal construction control line on the property being transferred.

Homeowners Associations

For properties subject to HOA membership, Florida Statute §720.401 requires homeowners (and developers) to provide prospective purchasers with a disclosure summary before executing the contract for sale.

The disclosure summary must be in a form substantially similar to the following form:

DISCLOSURE SUMMARY FOR (NAME OF COMMUNITY)

1. AS A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS’ ASSOCIATION.

2. THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN THIS COMMUNITY.

3. YOU WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO PERIODIC CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS $  PER  . YOU WILL ALSO BE OBLIGATED TO PAY ANY SPECIAL ASSESSMENTS IMPOSED BY THE ASSOCIATION. SUCH SPECIAL ASSESSMENTS MAY BE SUBJECT TO CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS $  PER  .

4. YOU MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL DISTRICT. ALL ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE.

5. YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS LEVIED BY A MANDATORY HOMEOWNERS’ ASSOCIATION COULD RESULT IN A LIEN ON YOUR PROPERTY.

6. THERE MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS’ ASSOCIATION. IF APPLICABLE, THE CURRENT AMOUNT IS $  PER  .

7. THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE RESTRICTIVE COVENANTS WITHOUT THE APPROVAL OF THE ASSOCIATION MEMBERSHIP OR THE APPROVAL OF THE PARCEL OWNERS.

8. THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER, YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION GOVERNING DOCUMENTS BEFORE PURCHASING PROPERTY.

9. THESE DOCUMENTS ARE EITHER MATTERS OF PUBLIC RECORD AND CAN BE OBTAINED FROM THE RECORD OFFICE IN THE COUNTY WHERE THE PROPERTY IS LOCATED, OR ARE NOT RECORDED AND CAN BE OBTAINED FROM THE DEVELOPER.

DATE:
PURCHASER:

Moreover, each contract entered into for the sale of property governed by covenants subject to disclosure required by this section must contain in conspicuous type a clause that states the following:

IF THE DISCLOSURE SUMMARY REQUIRED BY SECTION 720.401, FLORIDA STATUTES, HAS NOT BEEN PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT IS VOIDABLE BY BUYER BY DELIVERING TO SELLER OR SELLER’S AGENT OR REPRESENTATIVE WRITTEN NOTICE OF THE BUYER’S INTENTION TO CANCEL WITHIN 3 DAYS AFTER RECEIPT OF THE DISCLOSURE SUMMARY OR PRIOR TO CLOSING, WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER OF THIS VOIDABILITY RIGHT HAS NO EFFECT. BUYER’S RIGHT TO VOID THIS CONTRACT SHALL TERMINATE AT CLOSING.

If the disclosure summary is not provided to a prospective purchaser before the purchaser executes a contract for the sale of property governed by covenants that are subject to disclosure pursuant to this section, the purchaser may void the contract by delivering to the seller or the seller’s agent or representative written notice canceling the contract within 3 days after receipt of the disclosure summary or prior to closing, whichever occurs first.

Condo Disclosures

Florida statute §718.503 requires sellers of condominiums to make several key disclosures to buyers. Required disclosure items include (but are not limited to) the condo declaration, articles of incorporation of the association, association bylaws and rules and the most recent year-end condo financial statement.

Moreover, the statute requires each condo contract for the resale of a residential unit to contain in conspicuous type either:

1. A clause which states: THE BUYER HEREBY ACKNOWLEDGES THAT BUYER HAS BEEN PROVIDED A CURRENT COPY OF THE DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION OF THE ASSOCIATION, BYLAWS AND RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT MORE THAN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS, PRIOR TO EXECUTION OF THIS CONTRACT;

or

2. A clause which states: THIS AGREEMENT IS VOIDABLE BY BUYER BY DELIVERING WRITTEN NOTICE OF THE BUYER’S INTENTION TO CANCEL WITHIN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS, AFTER THE DATE OF EXECUTION OF THIS AGREEMENT BY THE BUYER AND RECEIPT BY BUYER OF A CURRENT COPY OF THE DECLARATION OF CONDOMINIUM, ARTICLES OF INCORPORATION, BYLAWS AND RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT IF SO REQUESTED IN WRITING. ANY PURPORTED WAIVER OF THESE VOIDABILITY RIGHTS SHALL BE OF NO EFFECT. BUYER MAY EXTEND THE TIME FOR CLOSING FOR A PERIOD OF NOT MORE THAN 3 DAYS, EXCLUDING SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS, AFTER THE BUYER RECEIVES THE DECLARATION, ARTICLES OF INCORPORATION, BYLAWS AND RULES OF THE ASSOCIATION, AND A COPY OF THE MOST RECENT YEAR-END FINANCIAL INFORMATION AND FREQUENTLY ASKED QUESTIONS AND ANSWERS DOCUMENT IF REQUESTED IN WRITING. BUYER’S RIGHT TO VOID THIS AGREEMENT SHALL TERMINATE AT CLOSING.

A contract that does not contain the aforementioned language is voidable at the option of the purchaser prior to closing.

Note that different disclosure laws apply to condominiums when being sold by developers.

Disclosure: Commissions are not set by law or any Realtor® association or MLS and are fully negotiable. No representation, guarantee or warranty of any kind is made regarding the completeness or accuracy of information provided. Square footage numbers are only estimates and should be independently verified. No legal, tax, financial or accounting advice provided.

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