Seller’s Duty to Disclose Seller’s Duty to Disclose

Understanding a Seller’s Duty to Disclose – Can Sellers Be Sued after Closing?

Oct 26 2020

A residential real estate seller’s duty to disclose entails letting the buyer know of all known facts that are not readily observable and can materially affect the value of the property he or she intends to buy. This duty applies whether or not the agreement between the buyer and the seller specifically states that it is an “as is” real estate purchase contract. Notwithstanding the fact that a seller’s duty to disclose is a common law duty that supersedes what is agreed to in a real estate purchase contract, the FAR/BAR “As Is” Residential Contract for Sale and Purchase includes disclosures by the seller. It specifically states that the seller knows of no facts materially affecting the value of the property which have not been disclosed to the buyer and which are not readily observable.

The Florida Supreme Court case directly addresses a residential real estate seller’s duty to disclose in Johnson v. Davis, 480 So. 2d 625 (Fla. 1985). Florida Statutes chapter 475 extends this duty to real estate brokers and agents so that they too must disclose of known facts that materially affect the value of the properties they are selling. Jensen v. Bailey, 76 So. 3d 980 (Fla. 2nd DCA 2011) has further clarified the Johnson v. Davis case by ruling that a trial court wrongly held the seller to a “should have known” standard in order to establish post-closing liability, where the court in Johnson v. Davis required actual knowledge of the property defects.

The moral of this story is that the safest practice – for both residential real estate sellers and the realtors listing their properties – is to disclose all issues with the properties they are selling to the buyers in order to avoid post-closing liability. Even after closing, an unhappy buyer can sue a seller and/or realtor, and a Florida court could find them liable. Sellers should always disclose things like drainage or flooding issues, plumbing leaks, sinkholes, roof leaks, and termites, as those issues are typically not readily observable and usually carry significant repair costs.

Are You Selling a Home? Do You Have Questions about a Residential Real Estate Seller’s Duty to Disclose? We Have Answers – Work with Marina Title

As mentioned above, when it comes to selling residential real estate, it is always safest to disclose everything to buyers. As the seller of a home, there are certain common law requirements you will need to meet, such as the seller’s duty to disclose, which is why you should work with professionals that can help you understand your obligations and ensure you do not make legal mistakes that could lead to a post-closing lawsuit. If you have any questions about your liability as the seller or realtor in a residential real estate transaction in the State of Florida, it would be best if you consult a Florida real estate attorney or a title professional from Marina Title.

Selling a home can be a stressful experience. Usually, there are many people involved in a real estate closing, which can be confusing. This is why working with a title company that can offer all of the services you need in a single location is so crucial. When selling or buying a home, choosing the right Florida title company can be the difference between a smooth, timely, stress-free, and memorable real estate closing and a nightmare that gives you – and everyone involved – many headaches.

Marina Title is a full-service Florida title company that can handle real estate transactions from start to finish. No matter what you need, if it has to do with purchasing real estate in Florida, we can help. You will get everything you need under one roof, making it convenient for all parties, allowing them to close smoothly and quickly.

Get in touch with Marina Title today by calling (305) 901-5628 or by sending an email to

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