Selling a Florida Home: What Are My Disclosure Obligations?

Guidance on what residential real estate sellers must tell prospective home buyers when selling a house in Florida.

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 before the purchase is completed.

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 advise the buyer of these before accepting their money. Here, we'll take a closer look at:

  • Florida's legal requirements regarding home-seller disclosures (an overview of court-made precedent and the relevant statutes)
  • what disclosure form is available (but not required) for Florida home sales
  • protection against legal liability for Florida home sellers making disclosures
  • why "as-is" sales also come under the disclosure requirements
  • what sorts of information Florida home sellers need not disclose
  • federal laws requiring lead disclosures (if selling an older home), and
  • what legal liability Florida sellers who fail to comply with the disclosure laws face.

Disclosure Laws and Requirements for Florida Home Sellers

Florida case law provides that, with some exceptions, a residential home seller must disclose any facts or conditions about the property that have 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), by including a written statement in the transfer paperwork
  • if selling a 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; also in writing within the transfer paperwork (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); also, there's a similar statute specifically for condominiums (Florida Statutes §718.503)
  • the existence of any pending code enforcement actions against the seller, per Florida Statutes §162.06; the seller must not only disclose this in writing but also notify code enforcement officials of the property transfer, 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 (Florida Stat. § 689.261).

How Florida Sellers Make Disclosures to Prospective Home Buyers

Although Florida law does not require use of a standard form, the Florida Association of Realtors® provides one, to assist sellers in making the relevant disclosures. Your real estate agent can provide you with a copy. (This form 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
  • whether there are any restrictions on reconstructing the Property after a casualty loss or damage, 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 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.

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.

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 a murder, suicide, or death occurred or is suspected to have occurred on the property.

But what if the buyer asks about these issues? Florida law does not indicate how to 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.

Federal Guidelines Require Lead Disclosures in 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.

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 with any questions or uncertainties you might still have.

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