Q: I keep hearing that pursuant to the Homeowners' Association Disclosure law (Section 720.401, Florida Statutes), the seller must provide the buyer a current copy of the HOA documents. Is this true?
A: No. Section 720.401 does not require the seller to provide a copy of the HOA documents to the buyer. The buyer could, however, include a provision in his/her offer requiring the seller to provide the documents to the buyer.
Q: I understand that there’s a property tax disclosure law that became effective January 1, 2005. Is this disclosure required for all real estate transactions?
A: No. The Property Tax Disclosure Summary required by Section 689.261, Florida Statutes, is required only in the sale of residential property.
Q: Does the Section 404.056(5), Florida Statutes, radon gas disclosure have to be given to a buyer where the transaction involves the sale of vacant land?
A: No. The radon gas disclosure is not required for transactions involving unimproved properties.
Q: Is a new home seller required to disclose insulation information in the contract?
A: Yes. Section 16, CFR 460.16, explains insulation disclosure requirements for new home contracts.
The regulation reads as follows: “If you are a new home seller, you must put the following information in every sales contract: The type, thickness and R-value of the insulation that will be installed in each part of the house.
There is an exception to this rule. If the buyer signs a sales contract before you know what type of insulation will be installed or if there is a change in the contract, you can give the buyer a receipt stating this information as soon as you find out.”
Q: I represent an investor who is selling a home. He tells me that since he’s never lived in the property, he isn’t required to provide the buyer with a seller property disclosure statement. Is this true?
A: Yes and no. A seller isn’t required to fill out a seller’s disclosure statement regardless of whether the seller occupied the property or not.
However, pursuant to the Florida Supreme Court case Johnson vs. Davis, a seller is required to disclose known facts that materially affect the value of the property that are not known and readily observable to the buyer. That disclosure requirement exists whether or not the seller occupied the property.
Q: I’m the listing agent for bank-owned property. I want the bank to fill out the FAR Seller Real Property Disclosure Statement; however, a bank representative says this disclosure isn’t required by law since the bank never occupied the home. Is that true?
A: It’s true that the bank isn’t required to fill out the FAR Seller Real Property Disclosure Statement or any similar form because there is no legal requirement for a seller to give a buyer a written seller property disclosure statement.
However, a seller of a residential property, whether a bank or an individual and regardless of whether the seller occupied the property, is obligated under Florida law to disclose to a buyer all known facts that materially affect the value of the property which are not readily observable and are not known to the buyer. The disclosure obligation can be fulfilled via either a verbal or written disclosure.
Q: I’m representing a seller of vacant land. I want to use the FAR Seller Real Property Disclosure Statement, but much of the form doesn’t apply to vacant land. Is there a better form to use?
A: FAR has a Vacant Land Disclosure Statement specifically designed for the disclosure of facts related to vacant land. The form may be downloaded from the Florida Association of Realtors® Web site. Go to , click on “Tools and Support,” and then scroll down to Forms. (You will need to enter your login ID and password.)
Q: Does the radon gas disclosure apply to residential leases?
A: Yes. Section 404.056(5), Florida Statutes, requires the disclosure be provided prior to or at the time of execution of a rental agreement for any building. However, the statute states it does not apply to residential transient occupancy in a public lodging facility for 45 days or less.
Q: I represent a buyer who’s interested in making an offer to a for sale by owner (FSBO) who’s selling the home “as is.” I asked the seller to disclose any latent defects in the property, and he said he didn’t have to because the home is being sold “as is.” Does the seller have an obligation to disclose known latent defects if he is selling the home “as is?”
A: Yes. In Johnson vs. Davis, 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 is under a duty to disclose them to the buyer.” The disclosure can be made in writing or verbally. In addition, in Rayner vs. Wise Realty Co. of Tallahassee, the First District Court of Appeal provided that this same disclosure requirement applies to residential properties that are being sold as is.
Q: Several days after I obtained a listing, the seller left a message on my voice mail explaining that a member of her family had committed suicide in the home several years earlier. She wasn’t sure whether this was something we were required to disclose to a prospective buyer. Before I could return the seller’s call, a cooperating broker told me he had a buyer who was going to submit an offer to purchase later that day. I’m concerned that the seller and I have a legal obligation to disclose the fact that a suicide occurred in the home. Do we?
A: No. Section 689.25, Florida Statutes, states that “[t]he fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide, or death is not a material fact that must be disclosed in a real estate transaction.”
The statute further provides “[a] cause of action shall not arise against an owner of real property, his or her agent, an agent of a transferee of real property, or a person licensed under Chapter 475 for the failure to disclose to the transferee that the property was or was suspected to have been the site of a homicide, suicide, or death...”
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