Florida, like many other states, requires sellers of homes and other residential properties to make certain disclosures to buyers about the property’s condition and history.
This is a shift from the traditional legal principle of “let the buyer beware,” which basically made it the buyer’s responsibility to inspect the home and discover whether there are any unacceptable conditions or defects before closing the deal. However, in an ever-increasing number of states, courts and lawmakers have held 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 disclose these to the buyer—or face legal liability.
Florida law provides that, with some exceptions, you (as a home seller) must disclose any facts or conditions about your property that have a substantial impact on its value or desirability and that others cannot easily see for themselves (This comes from the court case of Johnson v. Davis, 480 So.2d 625 (Fla. 1985)).
To assist sellers in making all relevant disclosures, the Florida Association of Realtors® provides a standard form, which covers many common property characteristics about which buyers want to know. (This 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.)
The categories covered on the standard Florida disclosure form include, for example:
Some sources claim that, as a seller, you may make disclosures either verbally or in writing. Florida law does not definitively direct sellers either way. However, if you make oral disclosures without any written confirmation, you may have a difficult time proving later that you made them, which is especially problematic if the buyer purchases the property and later finds problems with the home. As a common sense and good business practice measure, it is best to make your property disclosures in writing.
Florida statutory law also requires that you present the buyer with a property tax disclosure summary (Fla. Stat. § 689.261). This summary may be included within the standard disclosure form described above or as a separate document, as long as it contains the language required by the statute. The language essentially states that a buyer cannot assume that the amount of property taxes currently paid by the seller will remain the same after the sale.
Don’t worry that you will be expected to know or learn about and disclose every minute detail of your home’s condition. As the seller of a home in Florida, you have the benefit of laws declaring that you will not be held responsible for property defects of which you have no actual knowledge. (This comes from the court case of Jensen v. Bailey, 76 So.3d 980 (Fla. 2nd DCA 2011).)
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: