Failure To Disclose

Florida Failure to Disclose Attorney | Real Estate Seller Disclosure Law

During the sale of a property in Florida, disputes can arise when a buyer later discovers defects that were not disclosed before closing. If you purchased a home or commercial property in Tampa, Clearwater, Palm Harbor, St. Petersburg, or anywhere in Florida and later discovered undisclosed defects, you may have questions about whether the seller—or others involved in the transaction—had a disclosure obligation and what options may exist.

Sellers of Florida properties are generally not responsible for defects of which they have no actual knowledge. However, when a seller does know about defects that materially affect a property’s value and those issues are not readily observable, Florida disclosure law can become a central issue in the dispute. Our real estate litigation attorneys at Bernhardt Riley, Attorneys at Law, PLLC assist buyers evaluating undisclosed defect claims and defend sellers facing disclosure allegations.

Florida’s Duty to Disclose: The Johnson v. Davis Rule

The Florida Supreme Court case Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), is widely cited as the foundation of Florida’s seller disclosure law. In Johnson, the Court held that when a seller of a home knows of facts materially affecting the value of the property, which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them.

This case rejected the traditional “caveat emptor” (buyer beware) approach in this context and recognized an affirmative disclosure duty. The duty is commonly discussed in connection with different forms of real property transactions, including residential and commercial sales, and both new and existing properties.

What Is a “Material” Defect Under Florida Law?

In practice, “materiality” is often litigated. A defect is commonly argued to be “material” when it:

• Affects the value of the property
• Affects the property’s desirability to a typical buyer
• Impacts the property’s use for its intended purpose
• Raises health or safety concerns

Material defects are frequently discussed as “latent,” meaning not readily observable during a reasonable inspection. If a buyer could easily see the issue during a walkthrough, disputes may focus on whether there was any separate disclosure obligation and whether the buyer’s due diligence addressed the condition.

What Must Sellers Disclose in Florida?

Florida does not mandate a single, uniform seller disclosure form in the same way some states do. However, Florida disclosure disputes are often evaluated through the common law framework discussed in Johnson v. Davis—especially when the allegation involves a known, material defect that was not readily observable.

Below are examples of issues that are frequently raised in Florida disclosure disputes. Whether an issue must be disclosed in a particular transaction is fact-specific and often depends on knowledge, materiality, and observability.

Issue Type	Commonly At Issue?	Why It Comes Up
Roof leaks	OFTEN	May affect value and may not be readily visible
Foundation cracks	OFTEN	Structural concerns and repair cost are frequently disputed
Prior flooding	OFTEN	May affect value and insurance considerations
Toxic mold	OFTEN	Health concerns and visibility/knowledge questions are common
Termite damage	OFTEN	May be hidden and costly; inspections and prior treatment records often matter
Plumbing issues	OFTEN	Can affect habitability, use, and repair costs
Sinkholes / soil issues	OFTEN	May involve safety/value concerns and can be complex to evaluate
Chinese drywall	OFTEN	Frequently discussed due to health concerns and known remediation issues
HOA disputes/fines	OFTEN	May affect use/enjoyment; contract documents and HOA records often control
Neighborhood nuisances	SOMETIMES	Often depends on whether the condition was known and not obvious to the buyer
Death on property	GENERALLY NOT	Often treated as a “stigma” issue rather than a physical defect
Property stigmas	GENERALLY NOT	Psychological impacts are typically treated differently than physical defects
Cosmetic wear	GENERALLY NOT	Often readily observable during showings

Broker and Real Estate Agent Issues in Disclosure Disputes

Disclosure disputes sometimes involve the conduct of real estate professionals. The case Goodman v. Rose Realty West, Inc., 193 So. 3d 86 (Fla. 4th DCA 2016), is commonly cited in discussions of broker liability theories, including agency-based arguments in fraudulent nondisclosure disputes.

In practice, questions may include:

• Did the agent or broker have information about a defect?
• What was communicated to the buyer during the transaction?
• Did the agent or brokerage play a role in any alleged concealment?

Whether a claim exists against an agent or broker is fact-specific and depends on the transaction record and evidence.

For related matters, visit our real estate litigation page.

Buyer’s Duty to Investigate: The Gilchrist Timber Discussion

While sellers may have disclosure obligations, disputes often also examine what a buyer did during the inspection and due diligence period. The Florida Supreme Court case Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla. 1997), is often cited regarding the scope of a buyer’s duty to investigate during a transaction.

The Court noted a buyer does “not have to investigate every piece of information furnished;” rather, the buyer must investigate “information that a reasonable person in the position of the [buyer] would be expected to investigate.” Id. at 339.

In practical terms, disputes may focus on questions such as:

• Did the buyer conduct a reasonable inspection?
• Were there “red flags” that would cause a reasonable buyer to investigate further?
• What did the inspection reports show, and what follow-up occurred?

Florida Statute 475.278: Realtor Relationship Disclosures

Florida also imposes certain disclosure requirements on real estate licensees regarding agency relationships. Florida Statute 475.278 addresses real estate relationship disclosures and forms used to describe whether an agent represents the buyer, the seller, or both in a limited capacity.

In some disputes, questions arise about whether proper relationship disclosures were made and whether any information known to a licensee about a property condition should have been communicated.

What Happens When an Undisclosed Defect Is Found After Closing?

If a significant defect is discovered after closing, the practical first steps often include:

• Documenting the condition (photos/videos, written notes, dates)
• Preserving transaction records (contract, addenda, disclosures, emails/texts)
• Obtaining professional evaluations where appropriate (inspectors, contractors, engineers)

From there, the key questions typically become: What was known before closing, what was communicated, what was discoverable through inspection, and what damages are supported by proof.

Defenses Sellers May Raise in Disclosure Claims

If you are a seller facing a disclosure claim, defenses commonly focus on the transaction facts, including:

• “I didn’t know about the defect.”
• “The defect was readily observable.”
• “The buyer conducted inspections and accepted the property.”
• “The condition was not material.”
• “The alleged damages are not supported or are caused by post-closing events.”

Common Disclosure Issues in Florida Real Estate Transactions

Water Damage & Flooding

Given Florida’s climate and storm exposure, water intrusion, moisture conditions, and prior flooding history are frequent topics in disclosure disputes. Transaction documents, insurance records, repair invoices, and prior remediation efforts often become important evidence.

Roof Problems

Florida roofs face heavy sun, wind, and rain exposure. Disputes may involve alleged leaks, temporary repairs, or allegations that underlying issues were masked before closing.

Sinkholes and Foundation Issues

Florida geology makes sinkholes and soil conditions a major concern in many regions. Disputes may involve alleged sinkhole activity, monitoring, repairs, and what was known or communicated during the transaction.

Homeowners Association Disputes

HOA issues can include pending violations, fines, disputes, or special assessments. In many cases, the contract terms and HOA records control what was available or disclosed before closing.

Chinese Drywall

Homes built or renovated between 2001–2009 are sometimes associated with Chinese-manufactured drywall concerns. In disputes, the central questions often involve what the seller knew, what records exist, and what was communicated.

Frequently Asked Questions: Failure to Disclose in Florida

What must sellers disclose when selling a home in Florida?

Florida disclosure disputes frequently focus on whether a seller knew of a defect that materially affected value and was not readily observable. Cases like Johnson v. Davis are commonly referenced when evaluating these issues.

Is Florida a non-disclosure state for real estate?

Florida is commonly discussed as having meaningful seller disclosure obligations even though there is not a single mandatory statewide seller disclosure form in all transactions. In disputes, courts often evaluate the facts through the framework discussed in Johnson v. Davis and related decisions.

Can I sue if the seller didn’t disclose problems in Florida?

Whether a claim exists depends on the facts, evidence, and transaction documents. Many disputes focus on seller knowledge, materiality, whether the condition was observable, and what the buyer did during inspections. A case evaluation typically begins with reviewing the contract file and inspection history.

How long do I have to address a potential failure-to-disclose claim?

Time limits can depend on the type of claim and specific facts. If you believe you have a disclosure issue—whether as a buyer or seller—it is best to consult an attorney promptly so rights are not lost due to timing.

What damages can be involved in failure-to-disclose disputes?

Disputes may involve repair costs, alleged loss in value, and other claimed losses depending on the facts and supporting proof. The specific categories and recoverability depend on the claim type and evidence.

Do sellers have to disclose deaths on the property in Florida?

Death on property and other “stigma” issues are commonly treated differently than physical defects in Florida disclosure discussions and are often not analyzed as “material defects” in the same way as structural or safety issues.

Can I sue the real estate agent for failure to disclose?

Some disputes involve claims against agents or brokers based on what was known and what was communicated. Cases such as Goodman v. Rose Realty West, Inc. are often discussed in this context, but whether a claim applies is fact-specific.

What if I bought the property “as-is”?

In disclosure disputes, “as-is” language often becomes an important issue. The impact depends on the contract language and the facts surrounding what was known, what was communicated, and what the buyer could reasonably discover during due diligence.

What should I do if I discover an undisclosed defect?

Document the condition, preserve transaction records and communications, and obtain professional evaluations where appropriate. If you are considering legal action or need a defense, consult counsel promptly so evidence can be preserved and timelines reviewed.

Contact Our Florida Failure to Disclose Attorneys

If you purchased a property in Tampa, Clearwater, Palm Harbor, St. Petersburg, Jacksonville, or anywhere in Florida and discovered undisclosed defects, you may need experienced legal guidance. Likewise, if you are a seller facing a failure-to-disclose claim, our attorneys can help evaluate defenses and develop a strategic response.

Call us today at (727) 275-9575 for a free consultation or fill out our online contact form to schedule a meeting with our team.

Serving Tampa Bay, Clearwater, Palm Harbor, St. Petersburg, Jacksonville, and all of Florida.