It’s imperative that as a seller of any Florida property you openly disclose all known facts that will affect the property value in the past, present or future.
The Florida property seller is obligated to disclose what’s known of the material issues, problems, faults, or possible issues that are not readily observable to prospective buyers. Winter Park, Florida, and Orlando, Florida, real estate lawyers Eric Lanigan and Roddy Lanigan recommend real estate seller’s disclosure documents be reviewed by attorneys before signing.
The review catches errors, omissions and language that should or should not be present in the final agreements made on any real estate deal. From new homes to commercial property sales, the Lanigans suggest that buyers and sellers are careful to include thorough seller’s disclosure documents to prevent future misunderstandings and any legal issues that may arise.
Whether the roofing is faulty, shoddy, or not to code or the basement wall faults that have or may cause leaks “on occasion” that may cause water to pool, drip, drain or sit in the basement be fully disclosed by sellers. If the work is completed and the leak is repaired knowing who’s responsible in the Florida seller’s disclosure laws is imperative. If you think you know them, if you’re sure that you know them or if you aren’t sure, be sure to have an attorney review them first before executing the contract.
If you’re the seller and you know of past, present or possible termites or other pest problems (rodents, bugs, birds, etc.,) that enter or damage the home regularly, seasonally or in the past are you familiar with the law and what it says you must do as an owner selling a property and what you must reveal to buyers? Don’t guess. Be certain to have an attorney take a look at the paperwork.
There may be asbestos present in the ceiling or walls of commercial or residential properties. No matter when the property was built, if there are or were, or you’re not sure that asbestos are present, what is a seller legally required to disclose? Do you know? You may not, but an experienced real estate lawyer will.
Maybe one room in the attic or rarely used storage room in the basement has lead paint. If you as a Florida property owner know this and do not disclose this, you may be committing fraud or deceiving the buyer by not disclosing it. Do you know Florida real estate seller’s disclosure law? There are changes and additions frequently. Be safe instead of sorry. Have a lawyer get the last look before you sign the real estate deal.
What if you didn’t know that lead paint or asbestos were present and after the sale the buyer contacts you to request your presence at a meeting. Do you go to the meeting? Are you liable for the repair or replacement costs. What if someone became ill due to the paint or asbestos two years after the home was sold. Do you know your legal rights and defenses in this situation?
You may be liable for the damage, repairs or false disclosure by not looking into it before you signed the seller’s disclosure required at all Florida property sales. Ignorance of an issue is not an escape from the Florida real estate disclosure law. The fact is that you owned the property and are responsible for what you say or didn’t say or disclose about it.
What is a Florida Seller’s Disclosure Statement?
The Florida seller’s disclosure statement is designed to assist the seller in complying with the disclosure requirements under Florida law and to assist the buyer in evaluating the property being considered.
This disclosure statement concerns the condition of the real property located at a stated address. It is not a warranty of any kind by the seller or any licensee in a transaction. It is not a substitute for any inspections or warranties the parties may wish to obtain. It is based only upon Seller’s knowledge of the property condition. This disclosure is not intended to be a part of any contract for sale and purchase.
All parties may refer to the seller’s disclosure information when they evaluate, market, or present sellers property to prospective buyers. The representations are made by the seller(s) and are not the representations of any real estate licensees.
But is a realtor liable if the seller didn’t disclose a known fault?
Is the realtor responsible for assuring the buyer he or she didn’t know of a fault or omission in the property?
Required Real Estate Disclosures in Florida
Eric Lanigan and Roddy Lanigan represent a range of Florida real estate developers, realtors, appraisers, buyers, sellers, owners and contractors in commercial and residential litigation issues.
Frequently, the mandatory Florida property seller’s disclosure requirements become an issue. This is because there are so many requirements and they’re very hard to keep track of by a layperson or even a seasoned real estate veteran. The very best practice in any real estate transaction is to have all real estate documents reviewed by an experienced real estate lawyer familiar with Florida real estate disclosure law.
Eric Lanigan has practiced Florida law since 1976; Roddy since 2007. Together the Lanigans and their firm, Lanigan and Lanigan, P.L. provide clients with the real estate knowledge and guidance that will keep sellers and buyers out of expensive and extensive real estate litigation down the line.
There are several of Florida’s residential transaction unit disclosures required shown below. Some of the information includes disclosures required for commercial transactions. Local residential disclosures may exist so it is always prudent to inquire about such requirements before escrow closes.
The Top Real Estate Claim
What always tends to be the No. 1 claim on the real estate purchases and sales is in regard to the Errors & Omissions Insurance where there is a“failure to disclose” an item that a buyer felt was material.
The seller needs to realize that this is not an opinion in regard to what a seller feels is material. It is based on fact. If there are material issues, they need to be disclosed. Failure to disclose is grounds for a lawsuit.
A good practice or measure is to include any issue that you remotely feel, think, wonder or worry if it is an issue. If you think it is, it should be. If you’re not sure it’s an issue to disclose, best practice is to disclose it. It may be worse to NOT disclose it than to expose a possible issue because not disclosing a known material defect can be attributed to a seller.
However, “the go with your gut method isn’t the best legal practice.” In this regard, you should refer the issue to a real estate attorney for review. If you include something that is not an actual material defect issue, yet a buyer sees it in the disclosure and is scared off on something that is repaired, no longer a problem, then it’s imperative that you explain exactly to the buyer what was done to remedy the material defect or fault. Knowing the verbiage, knowing what you should and shouldn’t disclose is a legal opinion. If you are a layperson, no amount of reading online will prepare you for what may lie ahead in a real estate lawsuit.
There are some general guidelines to help protect against non-disclosure liability lawsuits. Part of this is ensuring that all real estate documents are reviewed by an attorney before signature. A key factor is to ensure that all disclosures are in writing and have acknowledgment signatures by all parties involved in the sale.
A Few Pertinent Required Disclosures Required
Please note: This only includes a few of the required disclosures by Florida law and are by no means the complete list. For a complete and thorough list consult with Eric Lanigan and Roddy Lanigan who will review your real estate documents prior to the sale or purchase of the property. There is no going back on a deal because while there are “outs” what’s done can be undone but usually for an expensive legal fee.
TDS (Transfer Disclosure Statement)
This law requires sellers to give prospective buyers a written disclosure statement of items including possible easements, neighborhood issues, appliances, structural defects, modifications, and other material defects that may affect the principal’s decision in a transaction.
Megan’s Law was established to notify buyers and tenants of the proximity of registered offenders and requires every purchase contract and lease agreement to have a specific written notice that a database containing information about registered sex offenders may be accessed by buyers and tenants. This disclosure is required for every lease or real property sales contract for residential real property entered into on or after July 1, 1999.
Natural Hazards Disclosure Law
The Natural Hazards Disclosure law requires the seller or seller’s agent to disclose property that is located in the following zones:
- Very High Fire Hazard Severity Zones
Areas where property owners may be obligated to undertake specific maintenance duties
- Wildland Fire Areas
Areas wherein the state has responsibility for fire suppression
- Flood Hazard Zones
Areas subject to unusual flood risks
Neighborhood Environmental Contamination
Disclosing environmental information that’s reasonably available today acknowledges that buyers may have questions over the uncertainties environmental contamination issues
present. The potential for hazardous substance contaminated sites in the vicinity of residential property could be anything from a local gasoline station with a leaking underground fuel tank to an industrial site.
Lead Paint Disclosures
The law requires both sellers and lessors to disclose known lead hazards by providing an informational booklet and a disclosure form as addenda to the purchase contract or lease. The federal lead paint disclosures apply to leases and sales of residential property, including mobile homes, constructed before 1978.
Disclosures involving the location and proximity of any military ordnance sites.
Known Hazardous Substances on the Property
State law requires that disclosure of known environmental contamination or hazards on a subject property be made to prospective buyers. Environmental contamination could be a private underground fuel or heating oil tank that has leaked. Do you know if you’re liable or responsible for disclosing a location that you didn’t know of although it was just a mile or less from the property?
To cover yourself and your business, your family, your investment fully, it’s best to spend on the investment to have a real estate attorney to look at your documents before you put the property on the market. DO NOT SIGN or EXECUTE a real estate document without having consulted with an experienced real estate attorney. Lanigan and Lanigan, P.L., are Orlando and Winter Park real estate attorneys Eric Lanigan and Roddy Lanigan who have handled individual and company cases in residential and commercial real estate litigation representing and defending homeowners, property owners and investors, realtors, mortgage companies, appraisers, construction companies, and many contractors within real estate.