Property disclosure issues come up regularly in real estate — a buyer closes, finds something wrong with the home, and starts asking questions about whether the seller knew and didn’t tell them. Sometimes it’s a genuine oversight. Sometimes it’s something the seller hoped wouldn’t surface. Either way, understanding what Florida law requires of sellers — and what buyers can do when disclosure obligations aren’t met — matters for both sides of the transaction.
This post covers Florida’s disclosure framework, what sellers are actually required to disclose, what happens when they don’t, and how the As-Is contract fits into all of it.
Florida’s disclosure law is rooted in a 1985 Florida Supreme Court case, Johnson v. Davis, which established that sellers have a duty to disclose any known facts that materially affect the value of the property and are not readily observable or known to the buyer. This is the legal foundation that applies to every residential real estate transaction in Florida.
The standard has three components worth understanding:
Known to the seller. The seller has to actually know about the defect. A seller who genuinely didn’t know about a problem — say, a slow leak hidden inside a wall — can’t be held liable for failing to disclose it. The obligation is to disclose what you know, not to know everything.
Materially affects value. Not every flaw rises to the level of a required disclosure. A squeaky floorboard isn’t a material defect. A roof leak that has caused structural damage is. The threshold is whether a reasonable buyer would consider the information material to their decision to purchase or the price they’d pay.
Not readily observable. If a buyer can see the problem during a reasonable inspection of the property, the seller’s disclosure obligation is reduced. Disclosure requirements focus on hidden defects — things the buyer couldn’t find on their own through ordinary diligence.
This is the most commonly misunderstood aspect of Florida real estate disclosure. The Florida As-Is Residential Contract is the standard purchase contract used in most Florida transactions. “As-Is” refers to the seller’s obligation to make repairs — it means the seller isn’t agreeing to fix anything. It does not eliminate the seller’s legal duty to disclose known material defects.
A seller who uses an As-Is contract still has to disclose what they know. “As-Is” means: I’m selling it in the condition it’s in, I’m not making repairs. It does not mean: I don’t have to tell you what’s wrong with it.
Sellers who believe the As-Is contract protects them from disclosure obligations are wrong, and some have found this out in court. The contract and the common law disclosure duty are separate. One addresses who pays for repairs. The other addresses what must be disclosed. Both apply.
If you discover after closing that a seller failed to disclose a known material defect, you have potential legal recourse — but the path forward isn’t simple and you should understand it before deciding how to proceed.
Document everything first
Before anything else, document the defect thoroughly — photos, video, professional assessments from licensed contractors. Get written estimates for repair. If the issue is mold, water damage, or structural, get a professional report. This documentation forms the foundation of any claim.
Consult a real estate attorney
A Florida real estate attorney can assess whether you have a viable claim based on the specific facts — what the defect is, what evidence exists that the seller knew, and what the damages look like. This consultation is worth doing before you make any decisions about how to proceed.
Understand what you’d need to prove
To succeed in a disclosure claim in Florida, a buyer generally needs to establish that the seller knew about the defect, that it was material, that the buyer didn’t know and couldn’t have discovered it through reasonable inspection, and that the buyer suffered measurable damages as a result. The hardest element is usually proving the seller knew — which often comes down to evidence like prior repair records, neighbor testimony, or permits pulled for related work.
Available remedies
Depending on the facts and severity, remedies can include monetary damages (cost of repair or diminution in value), rescission of the sale in extreme cases, and in cases of intentional fraud, potentially punitive damages. Most cases settle for compensation rather than going through full litigation — partly because proving intent is difficult and partly because litigation is expensive for both sides.
The best protection a seller has against a post-closing disclosure dispute is thorough, documented disclosure before closing. Disclose what you know. If you’re not sure whether something rises to the level of a required disclosure, err on the side of disclosing it. The cost of over-disclosing is almost always lower than the cost of defending a non-disclosure claim.
Florida doesn’t require sellers to use a standard Seller’s Property Disclosure form — but using one and completing it carefully creates a documented paper trail that protects you. If the form is complete, accurate, and signed, it’s significantly harder for a buyer to later claim they weren’t told about a known condition.
Sellers sometimes resist disclosing things because they’re afraid it will kill the deal or reduce the price. The reality is that most buyers, when properly informed, proceed anyway — they factor it into their negotiation. What ends deals, or ends up in court, is finding out after closing that the seller knew and didn’t say anything.
Questions about disclosure obligations as a seller, or dealing with an undisclosed defect as a buyer in Central Florida? Reach out. I can help you understand the situation and point you toward the right resources including qualified real estate attorneys.
Leave a Reply