What Can Florida Buyers Do If A Seller Doesn’t Disclose Defects

When buying Florida real estate, it’s important to be aware of your rights and options if you discover that the seller didn’t disclose a defect. Even using the AS-IS contract for sale, where a seller can attempt to limit repair responsibilities, Florida law mandates the disclosure of all known material defects that could affect the property’s value. So, here’s a guide on what buyers can do if faced with this situation.

Understanding AS-IS Sales and Seller’s Obligations

In an AS-IS sale, the seller often tries to minimize their repair responsibilities by selling the property in its current condition without obligating them to fix anything. However, this doesn’t absolve them from disclosing known defects. In Florida, sellers must disclose all known material defects that are not readily observable and could materially affect the property’s value. Failure to do so can result in legal liability for the seller.

So, what steps can buyers take if a defect is discovered?

1. Gather Evidence of the Seller’s Knowledge
   

   • Efforts to Hide Defects: Look for signs that the seller may have tried to conceal the defect, such as recent repairs or covering up damage.
   • Vendor Testimony: Collect statements from vendors who worked on the property and may have informed the seller about the defect.
   • Neighbor Testimony: Neighbors might have knowledge of the defect if the seller discussed it with them, so its always worth reaching out to them and asking the question.
   • Repair Records: Search for any repair records or estimates that indicate the seller was aware of the issue. This could include researching the local building permitting department to see if any works were registered with the county.
   • Agent Testimony: If the seller’s agent knew about the defect, their testimony could be critical.

2. Legal Recourse
   

   • Back Out of the Contract: If the defect is discovered before closing, buyers might have the option to back out of the contract, even if it is after the inspection period.
   • File a Fraud Claim: Buyers can file a claim for fraud if they can prove that the seller knowingly withheld information about the defect.
   • Sue for Damages: Buyers can sue the seller for damages resulting from the undisclosed defect.

3. Work with a Real Estate Attorney
   

   • Consult with a real estate attorney to understand your rights and develop a strategy for addressing the issue. An attorney can help you gather the necessary evidence and represent you in legal proceedings.

Realtors also have a duty to disclose known defects. Agents who fail to do so can be held liable for nondisclosure or misrepresentation, so it’s important they ensure sellers fill out the disclosure forms themselves to avoid liability. They should always disclose any defects, even if they seem minor, as well as recommend that buyers get a home inspection, regardless of the property’s condition. And it goes without saying that they should never exaggerate or misrepresent the property’s features.

Proactive Measures for Buyers

Here are 3 x ways you can protect yourself as a buyer and minimze the risk of being subject to an undisclosed property defect:

• Conduct Thorough Inspections: Always hire a professional inspector to thoroughly check the property for any hidden defects.
• Use the FAR Seller’s Property Disclosure Statement: This form helps ensure that all known defects are documented and disclosed, providing a record that can be used in case of future disputes.
• Be Vigilant and Informed: Stay informed about common property defects in Florida, such as foundation issues, roof leaks, and mold. Ask specific questions about these potential problems during the buying process.

Discovering an undisclosed defect in a home can be a stressful experience but knowing your rights and the steps to take can help you address the issue effectively. In Florida, both sellers and real estate agents have a legal obligation to disclose known material defects. By gathering evidence, seeking legal advice, and being proactive, buyers can protect themselves and ensure a fair resolution.

Starting in October 2024, a new law mandates that all sellers of Florida residential real estate provide a statutory flood disclosure to buyers. For further details about this requirement, check out our in-depth post here.

Alternatively check out our post “Florida Real Estate Disclosure Laws: What Sellers Must Tell You.“

If you have any questions or need assistance with a real estate transaction, don’t hesitate to contact a qualified real estate attorney for guidance.

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