All or Nothing: When Selling a Home in Florida, What do you Really Have to Disclose: Part One

By Summer L. Reed April 2, 2024 Posted in Real Estate Litigation Share

Are you selling a residential home in Florida and wondering what a “disclosure” requires?  Are you a Florida home buyer concerned you may not be getting the whole story on a potential property? This blog will help you understand the general scope of home disclosures, all from a 30,000ft view.

To consider what “disclosures” are required in Florida, we must turn to current case law on the topic.  In Johnson v. Davis, the Florida Supreme Court created a duty for any seller of a residential property to disclose to the buyer any known “facts materially affecting the value of the property which are not readily observable and are not known to the buyer.” Given the current residential construction boom, it is important to note that the duty applies to sellers of all forms of real property, whether new or used. Johnson v. Davis, 480 So. 2d 625, 629 (Fla. 1985).

While this duty seems easy enough, the terms “materially”, “readily observable”, and even “known” may already be giving you heartburn. We cannot possibly address every scenario where these terms may be problematic. The most common issue surrounding disclosures is the analysis around exactly what facts a buyer should reasonably know in advance of making disclosures. Many “failure to disclose” lawsuits have turned on whether the seller fraudulently concealed defects in the home. Where a Florida homeowner knows of a defect, he or she must disclose that defect if it is not obvious (or “readily observable”) to a buyer. If you are selling a home, you cannot conceal any defects, as that would be a clear violation of your duty to disclose such known defects.

If you talk about a problem but don’t explain how big it is, especially if you know all the details about it, you could end up in trouble –  a Johnson v. Davis violation. To avoid this pitfall, it is best to share what you know. You may have heard that you should share nothing, or everything – hence the common “all or nothing” phrase surrounding this area of real estate practice. Said simply, if you know of a defect that may materially affect the price of your home, your duty requires that you disclose such a defect. However, the commonplace disclosure forms you may have encountered during a potential sale are not a requirement for the sale of a home in Florida. This is a little-known fact, that can be very helpful depending on the facts of the sale of your property.

The form that many of us recognize as “disclosure form” is actually a document required by some realtors, though not required by law. In fact, many disclosure forms created by realtors require much more extensive and thorough disclosures than is required under law. However, a seller has no obligation to disclose adequately repaired prior damages. Spitale v. Smith, 721 So.2d 341 (Fla. 2d DCA 1998); Slitor v. Elias, 544 So.2d 255 (Fla. 2d DCA 1989); Brown v. Carter, 13 So.3d 111 (Fla. 2d DCA 2009).