REAL ESTATE LAW
Seller’s Disclosure Obligation for Property Defects in Florida
Many buyers of real estate are clueless as to a seller’s disclosure obligation for property defects in Florida. This article will give you a basic overview on what a seller’s obligation for disclosure is on real property. In order to safeguard home buyers from property defects, fraud, and other problems associated with the purchase of real estate, sellers are obligated under virtually all state laws to disclose certain relevant information about the property they are selling.
Transfer disclosures as these requirements are called, provide notification to buyers about current problems associated with the property before making their purchase. Disclosure obligations affect not only the home or building, but also the area surrounding the property. Although states have their own requirements for seller disclosures, certain disclosures are compelled by federal law. In Florida, sellers can use the “Seller’s Property Disclosure Form,” created by the Florida Association of Realtors, but there is no statutory requirement to do so.
Sellers Disclosure Obligation for Property Defects in Florida They Know About
Most state disclosure requirements provide that sellers must inform buyers of defects that the seller knows about. While a Seller’s Property Disclosure Form is not required under Florida law, Florida law does require seller’s and their realtors to disclose any significant property defects that may not be easily visible to the buyer.
Buyers still have the responsibility to have the property inspected. Buyers should also be aware that a seller is not obligated to retain a home inspector to root out problems that he or she may not be aware of. Any willful non-disclosure can be treated as concealment and carries severe penalties for all parties involved.
What Are Material Defects in Real Property?
The most general way that a seller’s disclosure obligation is minimized is the requirement to disclose only material defects. Material defects refers to substantial defects that would likely have an effect on the value of the property or the buyer’s readiness to purchase the property. Impact on health and safety are also considerations when determining when a defect is considered material. Material defects are considered significant defects.
Examples of defects that would be considered material include electrical wiring that is faulty or a cracked foundation. In cases where the state’s law does not specifically state the term “material,” the idea is almost always intertwined with the classification of defects that sellers must disclose.
Hidden Defects in Real Property?
Defects that are not easily observable are commonly referred to as latent defects. Disclosure laws in most state’s carry a requirement that there must be disclosure of defects that would not be clearly obvious to an average buyer who is looking at the home. For obvious reasons, a huge crack easily observable on a wall in the living room would not trigger the duty to disclose by the seller. However, if the property has a leaky roof and is only visible during a heavy rain storm would trigger a seller’s duty to disclose.
Sellers Exemptions from Disclosure Requirements on Real Property
While some states have written into law certain details that a seller is not required to disclose. If a buyer asks the seller a specific and direct question about a problem with the property the law that grants the seller certain non-disclosure rights will not shield the seller if he or she lies. This type of situation can be complicated and the seller may elect not to answer your question at all.
Sellers Disclosure Obligation for Property Defects in Florida Regulatory Laws
In Florida, there are many laws that apply to residential disclosure requirements. Two of these laws are Florida Statute §689.25, and Florida Statute §475.278.
Florida Statute §689.25 states that if the property was ever presumed to have been the location of a homicide, suicide, or death, it is not considered a material fact and therefore is not required to be disclosed. While most buyers would probably want this information, sellers are sheltered from having to disclose these facts under the statute. Florida Statute §475.278 deals with broker relationships, real estate licenses, transaction broker relationships, single agent relationship, and notices.
Additionally, there are several other important statutory disclosures that should be mentioned.
Florida Statute §404.056(5), deals with environmental radiation standards. Essentially, this statute provides protection for buyers by requiring the real estate seller to disclose in writing dangers associated with radon gas.
Florida Statute §161.57, deals with coastal properties disclosure statements. This law requires the seller to disclose potential for coastal erosion, where the property is subject to state, local and federal law limiting construction on the property and compliance with environmental standards.
Florida Statute §720.401, is a law that requires mandatory membership in a homeowner’s association. This statute states that buyers looking to purchase real property in a community with an existing homeowner’s association must be informed of their requirement to become members of the homeowner’s association in the event that they buy the property. Additionally, members are required to pay monthly or quarterly fees as well as assessments, and risk a lien being filed on the property for failure to pay the homeowner association fees. As a consequence, if proper disclosures regarding the homeowner association disclosures has not been made, the sale can be voided.
Florida Condo Disclosures, are governed by Florida Statute §718.503 (1), (2), and (3), and pertain to the purchase of a condominium in Florida. These laws make it illegal for sellers and developers to not disclose prior to purchase all of the specificities that go along with condo ownership. These specifics include, right to review association documents and bylaws prior to closing, property management details, property management contracts, time shares, right to evaluate any recreational leases of the condo, proof of improvements, legal ownership of the developer or seller. The Florida Condo Disclosures must be made in writing which includes the statutory language by the seller of the condo.
Seller’s Failure to Comply with Disclosure Obligations
In Florida, there is not any one rule of law that outlines all of a seller’s disclosure requirements. Rather there are many laws that can have severe consequences on a seller of residential real property for failure to disclose latent or material defects that the seller was aware of prior to the closing. Failure to comply with the seller’s disclosure requirements can give the buyer legal grounds to back out of the property purchase contract, and or entitle the buyer to sue the seller for damages.
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