In Florida, sellers are required to disclose certain information to prospective buyers of their property (even if the property is being bought “As Is”). Exactly what they must disclose is dictated by both statutory law and case law, which can make it difficult to discern just how much information a seller is obligated to provide.
Despite the difficulties sometimes associated with this, real estate disclosure is important. The seller of a property is in a unique situation to know much more about the property than can often be discovered through a tour or even an inspection.
What Seller Disclosures does Florida Law Require?
Case law has determined that a seller must disclose conditions about the home or property that have a significant impact on its value if those things cannot be easily observed by potential buyers. There are exceptions and caveats to this broad rule, which is why obtaining legal counsel is a wise decision. A real estate attorney can address any specific questions you have about what is or is not required to be disclosed.
The Florida statutes also impose certain seller disclosure obligations, including:
- Disclosure requirements for the presence of radon gas;
- For beach and coastal properties, disclosing that the property may be subject to laws involving environmental matters (such as erosion potential, beach nourishment, and marine turtle protection);
- If the property was built before 1978, disclosure regarding the absence or presence of lead-based paint in the dwelling;
- Disclosure information about homeowner’s or condominium association membership and fees, governing association documents, association approval of the new owner, and assessments; and
- Property tax disclosures essentially providing that a sale of the property may result in a value reassessment and higher property taxes.
Many of the above-referenced disclosures are included in the standard Florida contract forms, addenda, and riders to make it easier for sellers to meet their disclosure obligations. Others must be affirmatively written out by the seller.
How are Seller’s Disclosure Made to Buyers?
Just as what must be disclosed is laid out in Florida case law and statutes, how you disclose the information is also important. For example, certain condo disclosures must be made in writing and include specific wording stipulated by Florida statutory law.
However, not all seller disclosures must be provided for in writing. Oral notification satisfies your legal requirements in certain circumstances. The issue with this is that verbal real estate disclosures may be difficult to prove if disagreements later arise. Therefore, it’s best to provide all property disclosures in writing.
To assist sellers with this, the Florida Association of Realtors has created a standard form that covers disclosures relating to property-related conditions. This disclosure form is in a question-and-answer format, and asks sellers to disclose any issues with the roof, drywall, sinkholes, environmental matters, wood-destroying organisms (such as termites), etc.
What Specific Disclosures Need to be Provided?
The details you will personally need to disclose are highly individualized as they are based on your specific property. You may be in a position that adds extra requirements in terms of your seller’s disclosures. For example, Property Assessed Clean Energy (PACE) loans come with their own unique stipulations and disclosures. Prior to executing the contract, you must notify the buyer, in writing, of the PACE assessment.
Additional requirements can also be placed on real estate disclosures in certain Florida localities. Miami-Dade County sellers are required to let a buyer know about septic tanks located on the property. Navigating the complexities of both statutory requirements and case law as applied to your unique situation is something a qualified real estate attorney assist you with.
What if a Seller Misses a Required Disclosure?
While there are laws in place to protect buyers from misrepresentation from sellers, there are also protections in place for sellers. It is not reasonable to expect the owner or seller of a property to know every detail or predict every potential problem that could crop up down the road.
If there is a defect in the property that you did not disclose, you may be able to avoid liability by proving:
- You were not aware of it;
- There was no significant impact on the value of the home;
- The defect was easily noticeable by the buyer; or
- That you did, in fact, disclose the issue to the buyer.
What Does Not Need to be Disclosed?
You are not required to disclose any information about:
- Any occupants of the property having HIV or AIDS; or
- Deaths that occurred on the property.
Our Legal Services for Sellers
At Farshchian Law, P.A., we provide a full range of legal services for sellers throughout the State of Florida. If you need assistance with seller’s disclosures or any other aspect of your real estate transaction, please reach out to us for a free consultation. Contact us by calling (305) 901-5628 or (239) 935-8599 or by emailing us at Info@JFRealEstateLaw.com.