Owning property in Florida can be a valuable investment. Yet, it’s important to understand that selling it isn’t necessarily a simple matter. Florida law places some essential and strict obligations on property owners that put their homes on the market. One of the most important of these also happens to be an element that a lot of sellers aren’t always clear about: disclosure.
Disclosure obligations cover a number of areas and failing to meet these can result in significant consequences. A smooth sales process is better for everyone involved, and the last thing you want is value disputes or even potential lawsuits. So, let’s take a closer look at your disclosure obligations as a seller in Florida. What are they and how can you best navigate them?
Florida’s Legal Framework for Seller Disclosures
One of the elements that can complicate disclosure for sellers like you is that Florida doesn’t treat this matter like a lot of other states in that there are no statutory disclosure forms to complete. Rather, a combination of various Florida statutes and common law based on a body of precedent through court decisions guides standards and expectations for disclosure.
The most relevant court decision related to disclosure is the case of Johnson v. Davis (1985). This is a landmark ruling in which the Florida Supreme Court found that residential property sellers have to disclose all known material defects that aren’t readily observable to buyers. As a result, this expectation has effectively become a legal obligation in Florida, even though there is no specific statute that mandates it.
Put simply, if you’re aware of any material defects, especially issues those visiting the property can’t see, you must disclose them.
What Sellers Are Required to Disclose in Florida
Legal precedent in Florida means sellers must disclose all known material defects that aren’t readily observable to buyers. But what does this actually include? Some of the key areas of focus include the following.
| Issue | Examples |
|---|---|
| Structural defects | Roof leaks, foundation cracks, load-bearing wall damage, sinkholes, structural settlement, etc. |
| Systems and utilities | Electrical wiring issues, plumbing leaks or blockages, HVAC problems, septic or sewer issues, etc. |
| Water intrusion and mold | Evidence of prior flooding, mold growth (even if it’s been treated), ongoing moisture issues, etc. |
| Pest infestation | Termite damage, evidence of carpenter ants, rodent presence, etc. |
| Environmental hazards | Lead-based paint in older homes, radon gas presence, asbestos, underground fuel tanks, contaminated soil, etc. |
| Unpermitted work | Renovations or additions undertaken without correct permits, work that fails to meet building codes, etc. |
| Legal and zoning issues | Boundary disputes, pending liens or other legal claims, title defects, etc. |
What You’re Not Required to Disclose
To mitigate the potential for unnecessary stigma affecting sales, Florida Statute § 689.25 specifically outlines some things that you’re not required to disclose. These are:
- Death on the property – Homeowners are not required to disclose deaths on the property, whether from natural causes, homicide, or suicide.
- HIV/AIDS status – The status of any prior occupant or person associated with the property is not considered a material fact to be disclosed.
Is a Disclosure Form Mandatory?
Despite the fact that Florida law requires disclosure of material defects, it doesn’t go so far as to mandate the use of a specific disclosure form that may be required in other states. Indeed, the statutes and legal precedent haven’t formalized the requirement for disclosures to be made in writing at all.
Nevertheless, it is still wise to use a disclosure form for the following reasons.
- It creates a clear record of the extent to which known issues have been disclosed
- It can act as a checklist for sellers to review commonly overlooked issues
- It helps demonstrate transparency to buyers, which can boost trust and engagement
Above all else, completing this technically optional form helps to safeguard your interests. These forms are usually readily available from real estate agents, lawyers, or downloadable from online sources.
How to Handle Unknown or Hidden Defects
Florida law specifically focuses on disclosing known defects. If you genuinely aren’t aware of a problem with the property, you usually can’t be held liable.
That said, claiming ignorance is not necessarily an easy defense to maintain if you’re facing a lawsuit. You don’t want the court to believe you’ve wilfully ignored an issue. Therefore, it’s wise to take action that shows you’ve taken responsible steps to look for potential defects.
You could consider the following:
| Measure | Details |
|---|---|
| Pre-listing inspection | A thorough inspection by you or an independent contractor can uncover potential issues or confirm there’s nothing to declare. |
| Thorough property records | Keeping receipts and reports for any repairs, maintenance, or past inspections helps demonstrate a proactive approach to identifying declarable issues. |
| Engage an attorney | If you’re uncertain about what constitutes a known material defect, a real estate attorney can provide clarity. |
Consequences of Failing to Disclose in Florida
Given that Florida law requires the disclosure of known material defects, failing to meet these obligations can result in significant consequences. These can depend on the extent of the failure, but common outcomes include:
- Legal claims – Buyers could sue for breach of contract, misrepresentation, or even fraud.
- Sale cancellation – If known material defects are discovered during due diligence, the buyer may back out of the sale.
- Financial damages – Florida courts may order the seller to pay for any repairs, legal costs, or other punitive damages when misrepresentations are intentional.
How to Protect Yourself as a Florida Seller
It can be daunting knowing that there is a legal obligation to disclose material defects, particularly if you’re uncertain whether potential issues fall within the definition. In most instances, the best way to protect yourself from negative outcomes is to be honest. Always disclose known issues, even if they might jeopardize the sale of your property. Using a structured disclosure form also creates a clear evidentiary record of your communications to buyers.
Certainly, if there’s doubt over whether an issue is disclosable or if it falls into potential legal gray areas, an experienced Florida real estate attorney can provide you with invaluable guidance. Nevertheless, the key takeaway here is that transparency is generally your best legal safeguard. Being open about potential issues and being proactive about finding, assessing, and communicating them is essential.
