What Florida sellers must disclose
What Florida sellers must disclose was settled in 1985, when the Florida Supreme Court decided Johnson v. Davis and replaced caveat emptor for residential sales. The rule it created is short enough to quote and hard enough to apply that it still generates litigation forty years later. Understanding the shape of it protects you.
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The rule itself
In Johnson v. Davis, 480 So. 2d 625, the Florida Supreme Court held that where the 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 has a duty to disclose them.
That single sentence is the foundation of Florida residential disclosure law, and every argument about disclosure is an argument about one of its terms.
Before it, caveat emptor governed and a buyer largely bore the risk of what they failed to discover.
After it, a buyer can bring a claim for nondisclosure without having to prove the seller said anything false.
The court said the duty applies equally to all forms of real property, new and used.
So silence about something you know can itself be actionable, which is the part sellers most often misunderstand.
Breaking the rule into its four parts
The seller must know the fact. A defect you genuinely had no knowledge of is a different situation from one you did.
The fact must materially affect the value of the property, which excludes trivia but includes a great deal.
It must not be readily observable, so something plainly visible on a walkthrough generally falls outside.
It must not already be known to the buyer, which is why disclosure resolves the problem.
Each of those four is contested in practice, and where a fact sits is frequently not obvious.
That is why the useful instinct is to disclose rather than to analyse whether you are obliged to.
What tends to count as material
Structural problems, including foundation movement, framing damage and anything affecting the building's integrity.
Roof leaks and water intrusion, whether current or repaired, since repair history matters to a buyer.
Mould, and any condition that produced it, even where it has been remediated.
Drainage and flooding history, which now also carries its own statutory disclosure.
Termite and other pest damage, including treatments and their results.
Plumbing and electrical problems, particularly where the materials themselves affect insurability.
Things sellers forget they know
Work done without a permit, including by a previous owner, which surfaces at inspection and affects the closing.
A repair that was done cheaply and did not hold, which you know and a buyer cannot see.
A neighbour dispute, a boundary question or an easement issue that has never been resolved.
An insurance claim you made, since the claims history is discoverable and its absence from your disclosure looks deliberate.
An association assessment discussed at a meeting you attended, which is knowledge whether or not it has been voted.
Anything you have been told by a contractor, inspector or engineer, because being told is knowing.
The flood disclosure is now separate and statutory
Since 1 October 2024, Florida law has required a seller of residential property to complete and provide a flood disclosure.
It must be given at or before the time the sales contract is executed, not later in the process.
The current text covers knowledge of flooding damage during your ownership, flood insurance claims you have filed, and any disaster assistance received.
It also carries the statutory definition of flooding, which is broader than many people assume and includes sustained standing water from rainfall.
This sits alongside the general duty rather than replacing it, so the Johnson v. Davis obligation still applies to everything else.
The requirement is in section 689.302 of the Florida Statutes, and there is a separate guide on it in this cluster.
Why as-is does not remove the duty
An as-is contract addresses who pays for repairs. It does not licence concealment of known material defects.
Selling as-is means you are not agreeing to fix things, which is a different proposition from not having to mention them.
Buyers still inspect, and an as-is contract normally still gives them a period in which to cancel.
A seller who conceals a known defect under an as-is contract has not protected themselves by the label.
This is one of the most common misunderstandings in Florida residential sales.
There is a fuller guide on as-is sales in this cluster, because the term is used loosely and means something specific.
How disclosure actually protects you
A disclosed defect is a known defect, and a buyer who proceeds with knowledge has accepted it.
It converts a potential claim into a negotiated term, which is a far better position.
It removes the leverage a buyer gains from discovering something late in the process.
It reduces the chance of a cancellation after you have taken the property off the market for weeks.
It makes the transaction more predictable, and predictability is worth real money in a negotiation.
Sellers who disclose thoroughly generally have quieter transactions than those who disclose minimally.
How to disclose well
In writing, before contract, and specifically rather than in general terms.
Describe what happened, when, what was done about it, and by whom where you know.
Attach the paperwork: invoices, permits, engineer reports, treatment records and warranties.
Avoid characterising the significance of a problem. State the facts and let the buyer and their inspector assess it.
Do not speculate about causes you do not know, because a wrong explanation can be worse than none.
Keep a copy of everything you provided and when, because that record is the point.
Where this stops being an agent's question
Whether a specific fact is material is a legal judgement, and it is litigated regularly.
Whether something is readily observable depends on facts that a general article cannot resolve.
Whether a repair was adequate is an engineering question rather than a real estate one.
If you are weighing whether something must be disclosed, that is a question for a Florida attorney.
We will always tell you to disclose when there is doubt, because that is the position that protects you.
An agent who tells you not to mention something is giving advice they are not qualified to give.
What we do before a listing goes live
We walk the property and ask direct questions about repairs, claims, permits, water and pests.
We ask for the paperwork rather than the summary, because documents answer buyer questions that recollections do not.
We make sure the flood disclosure is prepared before a contract rather than during one.
We recommend a pre-listing inspection on older properties, because it converts unknowns into decisions.
We route genuinely uncertain questions to an attorney instead of guessing at them.
Ask us to walk your property and we will tell you what a buyer's inspector is likely to find.
This page explains how the money side of a Florida sale works so you can plan around it. It is not legal or tax advice. Tax on your sale belongs with an accountant, and the legal effect of your contract belongs with a Florida attorney. What we can give you is an accurate figure for what your home is worth and what you would net, which is the input both of those conversations need.
Frequently Asked Questions
- What exactly does Florida require me to disclose?
- Under Johnson v. Davis, where you know of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, you have a duty to disclose them. Florida also now separately requires a flood disclosure at or before contract.
- Does selling as-is mean I do not have to disclose?
- No. An as-is contract addresses who pays for repairs, not whether known material defects must be mentioned. A seller who conceals a known defect has not protected themselves by using the label. It is among the most common misunderstandings in Florida residential sales.
- What if I fixed the problem?
- Repair history is usually still material, because a buyer wants to know what happened and whether the fix held. Disclose what occurred, when, and what was done, and attach the paperwork. A properly documented repair is often reassuring rather than damaging.
- Do I have to disclose something a previous owner did?
- If you know about it, it is knowledge you hold. Unpermitted work by a previous owner is the common example, and it surfaces at inspection or in the permit record anyway. The practical answer is that discovery is likely, so disclosure is cheaper.
- What if I am not sure whether something is material?
- Disclose it, or ask a Florida attorney. Materiality is a legal judgement that is litigated regularly, and the cost of disclosing something that turned out not to matter is essentially zero compared with the cost of the reverse.
- Is there a standard disclosure form?
- Forms are widely used in Florida practice and your agent will provide one, but the form is a tool for meeting the duty rather than the definition of it. Completing a form does not discharge the obligation if you know something the form did not ask about.
- What is the flood disclosure?
- A separate statutory requirement effective 1 October 2024, given at or before contract execution. It covers knowledge of flooding damage during your ownership, flood insurance claims filed, disaster assistance received, and carries the statutory definition of flooding.
- Can my agent tell me what I need to disclose?
- An agent can tell you what is customarily disclosed and will encourage you to disclose whenever there is doubt. Whether a specific fact legally must be disclosed is a question for an attorney. An agent who advises you to stay silent is giving advice outside their competence.
- What happens if I do not disclose?
- Johnson v. Davis created a cause of action for fraudulent nondisclosure, so a buyer can pursue a claim without proving you said anything false. The practical consequences also include cancelled contracts and renegotiations when something is discovered mid-transaction.
- Does the duty apply to new construction?
- The court said the duty applies equally to all forms of real property, new and used. In practice new construction raises different questions because the builder rather than an owner holds most of the relevant knowledge, but the rule itself is not limited to older homes.
More in this guide
Florida flood disclosure for home sellers
Florida flood disclosure for home sellers has been required since October 2024. What the form covers, when it must be given, and how flooding is defined.
Selling a house as-is in Florida: what it really means
Selling a house as-is in Florida means you will not make repairs. It does not remove your disclosure duty or the buyer's right to inspect and cancel.
Pre-listing home inspection: worth it or not?
A pre-listing home inspection turns unknowns into decisions you make on your own schedule. When it pays for a Florida seller, and when it is unnecessary.
From the Journal
Home Selling Tips
Did Someone Die in This House? Stigmatized Properties and What Florida Sellers Must Disclose
Home Selling Tips
Do Florida Sellers Get a Copy of the Inspection Report? Your Disclosure Duty If the Deal Falls Apart
Home Selling Tips
Seller Disclosure Form Florida: What You Must Reveal When Selling
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