Florida As-Is Contract: Can You Sue the Seller for Hidden Defects?

Quick answer: Yes, potentially. In Florida, an "as is" contract generally means the seller will not make repairs, but it does not give the seller permission to hide known defects. Under Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), a residential seller must disclose known facts that materially affect the property's value, are not readily observable, and are unknown to the buyer. Florida appellate courts have applied that duty to as-is sales.

Key Takeaways

• An as-is clause limits the seller's repair obligations. It does not automatically eliminate the seller's duty to disclose known, hidden material defects.
• The Florida Realtors/Florida Bar AS IS contract itself includes a seller disclosure provision.
• A seller can be liable for silence, not only for false statements.
• A home inspection does not automatically excuse nondisclosure, but a report that flagged the same problem can seriously hurt a buyer's claim.
• Preserve evidence before major repairs. Once the damage is gone, proving how long it existed gets much harder.

Many Florida home buyers believe that signing an AS IS Residential Contract for Sale and Purchase means they accept every problem with the property and give up the right to pursue the seller after closing.

That is not necessarily true.

An as-is contract generally means the seller is not agreeing to make repairs or guarantee the condition of the property. It does not give a seller permission to conceal known defects or make false statements about the home. Florida law can still impose a seller's duty to disclose certain hidden problems.

If you bought a Florida home as is and later discovered a serious roof leak, water intrusion, mold, structural defect, plumbing problem, unpermitted work, or another condition the seller may have known about, you may still have legal options.

What Does "As Is" Mean in a Florida Real Estate Contract?

In practical terms, an as-is transaction means the buyer agrees to purchase the property in its existing condition rather than requiring the seller to make repairs. That does not mean the buyer has no rights.

The commonly used Florida Realtors/Florida Bar AS IS Residential Contract for Sale and Purchase gives buyers an inspection period to conduct inspections and, if the contract requirements are followed, terminate the transaction if the property is unacceptable.

If the buyer moves forward, the buyer generally accepts the property's physical condition, subject to the other terms of the contract. That is different from agreeing that the seller may hide known defects.

Does an As-Is Contract Eliminate the Seller's Duty to Disclose?

No. Florida appellate courts have held that an as-is clause in a residential contract does not automatically eliminate the seller's duty to disclose hidden material defects. See Rayner v. Wise Realty Co. of Tallahassee, 504 So. 2d 1361 (Fla. 1st DCA 1987); Levy v. Creative Construction Services of Broward, Inc., 566 So. 2d 347 (Fla. 3d DCA 1990).

The basic rule comes from the Florida Supreme Court's decision in Johnson v. Davis. A residential seller generally has a duty to disclose when:

1. The seller knows about a fact or condition;
2. The condition materially affects the property's value;
3. The condition is not readily observable; and
4. The buyer does not already know about it.

In other words, "as is" does not mean "buyer beware of things the seller deliberately failed to disclose."

The Florida AS IS Contract Itself Contains a Seller Disclosure Provision

This point is often overlooked. The Florida Realtors/Florida Bar AS IS Residential Contract contains a seller disclosure provision in its standards section (Paragraph 10(j) in recent versions) addressing facts that materially affect the value of the property and are not readily observable.

The same contract that says the property is sold "as is" also recognizes the seller's disclosure obligations. The two concepts are consistent: the seller may decline to make repairs while still being obligated to disclose certain known hidden conditions.

What Does an As-Is Seller Usually Not Have to Do?

An as-is seller is not promising the house is perfect. Because of the as-is contract, the seller generally is not required to:

• replace an old roof;
• upgrade an aging air-conditioning system;
• repair cosmetic damage;
• modernize outdated electrical or plumbing systems;
• correct every item in the buyer's inspection report; or
• give the buyer a credit simply because the buyer wants repairs.

The buyer's main protection before closing is the inspection period and the right to decide whether to proceed. That is one reason buyers should take the inspection period seriously.

What Can't a Seller Hide Behind an As-Is Clause?

The legal issue changes when the seller knows about a significant problem that is not readily observable. Examples include:

A Known Roof Leak

Imagine the seller has had repeated leaks in a bedroom during heavy rain. Before listing, the seller replaces the stained drywall and paints the ceiling. The buyer's inspection happens during dry weather and shows no active leak.

If the seller knew the leak was still a recurring problem and did not disclose it, the as-is language may not prevent the buyer from bringing a claim.

Recurring Water Intrusion

Florida homes can take on water through roofs, windows, walls, balconies, drainage systems, or flooding. If the seller knows water regularly enters the home but the evidence is hidden when the buyer inspects, that may present a disclosure issue.

Structural or Foundation Problems

A seller may have received an engineer's report, repair proposal, or contractor evaluation about settlement, cracking, foundation movement, or another structural problem. Failing to disclose a known significant condition may create liability even when the property was sold as is.

Mold Hidden Behind Walls

Mold cases can involve complicated facts. But if a seller knows recurring water intrusion has produced substantial mold and simply covers the affected area without fixing or disclosing the underlying condition, the buyer may have a very different claim than a buyer who finds ordinary moisture after closing.

Plumbing or Sewer Problems

Repeated backups, slab leaks, deteriorated pipes, or failed septic systems can be expensive and hard to detect in a standard inspection. Prior plumbing invoices, repair records, or communications may later show the seller knew about the condition.

Unpermitted Work

An addition, converted garage, electrical modification, plumbing project, pool improvement, or other renovation can create problems if it was done without required permits. Whether nondisclosure supports a claim depends on the facts, including the seller's knowledge and the significance of the issue.

What If the Buyer Had a Home Inspection?

A home inspection does not automatically excuse a seller's nondisclosure. The question under Florida law is often whether the problem was readily observable and whether the buyer knew about it.

Home inspectors cannot see through walls, predict every intermittent leak, dig up underground plumbing, or always find a condition that has been deliberately concealed. A seller may have difficulty defending a nondisclosure claim simply by saying, "The buyer had an inspection."

At the same time, the inspection can matter a great deal. If the report clearly identified the same defect the buyer later claims was hidden, it becomes much harder to argue the condition was unknown or not readily observable.

What If the Inspection Report Mentioned the Problem?

This can change the case dramatically. Suppose the inspection report states:

"Evidence of roof leakage observed. Recommend evaluation by licensed roofing contractor."

The buyer closes without getting that evaluation, then learns after closing that the roof needs substantial repair.

That is very different from a case where:

• the inspection report found no leak;
• the seller had years of recurring leaks;
• the seller painted over the evidence shortly before listing; and
• the seller denied having any known roof problems.

The details matter.

What If the Seller Says, "I Thought It Was Fixed"?

This is one of the most common disputes in nondisclosure cases. A seller may believe in good faith that a prior repair solved the problem.

If a roofer repaired a leak three years before the sale and the seller never had another leak, the seller has a very different defense than someone who kept having leaks right up until closing.

Relevant evidence can include:

• when repairs were performed;
• what the contractor said;
• whether the problem returned;
• whether more repair attempts followed;
• communications between the seller and contractors;
• insurance claims;
• photographs;
• emails and text messages; and
• statements in the seller's disclosure.

How Do You Prove the Seller Knew About the Defect?

Seller knowledge is often the central issue. Buyers rarely have direct evidence at the start of a case, so knowledge is usually established through circumstantial evidence, such as:

• prior repair invoices;
• roofing company records;
• plumbing invoices;
• engineering reports;
• insurance claims;
• mold remediation records;
• pest-control records;
• building permits;
• code-enforcement records;
• HOA or condominium communications;
• previous inspection reports;
• emails or text messages;
• previous real estate listings;
• photographs;
• statements from neighbors; and
• testimony from contractors who previously worked on the property.

Sometimes the contractor who comes out after closing recognizes the house: "I've been here before. We gave the prior owner an estimate for this exact problem." That kind of evidence can change a case.

What If the Seller Lied on the Disclosure Form?

The seller's disclosure can become particularly important. Suppose the seller states there have been no known water-intrusion problems. After closing, the buyer finds invoices showing the seller hired several contractors to repair water intrusion in the same location.

The issue may then go beyond nondisclosure. Depending on the facts, the buyer may have claims for fraudulent or negligent misrepresentation.

What If the Seller Did Not Give Me a Seller Disclosure Form?

The absence of a separate seller disclosure form does not mean the seller had no disclosure obligation. Florida's disclosure rule comes from the seller's legal duty regarding known material defects, not from whether a particular form was filled out.

Florida also has a separate statutory flood disclosure requirement for residential sales, section 689.302, Florida Statutes.

The purchase contract, communications, representations, inspection history, and surrounding circumstances all need to be evaluated.

What If the Seller Never Actually Lied?

A seller does not have to make a false statement for a disclosure claim to exist. That is one of the key principles of Johnson v. Davis.

If the seller knows about a fact materially affecting the property's value, the condition is not readily observable, and the buyer does not know about it, the seller may be obligated to disclose it. Silence can matter.

Can I Sue After Closing on an As-Is Property?

Potentially. Closing does not necessarily eliminate a buyer's claims involving fraud, misrepresentation, or failure to disclose a material hidden defect. Depending on the facts, potential claims may include:

• failure to disclose a material defect;
• fraudulent misrepresentation;
• fraudulent concealment;
• negligent misrepresentation;
• breach of contract; or
• other statutory or common-law claims.

The right claim depends on the contract, the representations made, what the seller knew, what the buyer knew, and the nature of the defect.

Can I Get My Money Back or Undo the Sale?

In some circumstances, a buyer may seek rescission, which asks the court to unwind the transaction and restore the parties to their prior positions. Rescission is a significant remedy and is not automatically available every time a defect is found. Many cases instead involve claims for money damages.

How Much Is a Hidden-Defect Case Worth?

There is no automatic formula. A contractor estimate showing a $40,000 repair does not mean the legal claim is worth exactly $40,000. Damages can depend on:

• repair costs;
• loss in property value;
• consequential damages;
• the nature of the misrepresentation;
• the contract;
• whether repairs have already been made; and
• the cause of action.

Have a lawyer evaluate potential damages before assuming a repair estimate equals the value of the claim.

Can the Seller Blame the Home Inspector?

Possibly, but that does not necessarily resolve the seller's liability.

If an inspector missed something a reasonably competent inspection should have caught, the buyer may explore a claim against the inspection company. But the inspector's possible responsibility does not eliminate the seller's separate obligation to disclose a known hidden defect. More than one party may be involved.

Does the Inspection Period Protect the Seller After It Expires?

Not from fraud or nondisclosure claims, necessarily. During the inspection period, the AS IS contract generally gives the buyer broad ability to investigate the property and, if exercised correctly and on time, cancel the contract.

Once that period expires, the buyer's contractual right to cancel because of the property's condition changes significantly. Whether the seller concealed a known material fact is a separate question.

What Should I Do If I Bought a Florida Home As Is and Found a Hidden Problem?

If you suspect the seller knew about the defect, preserve evidence before making major changes to the property.

Document Everything

Take detailed photographs and videos. Document the condition before repairs whenever possible.

Keep the Damaged Materials When Practical

If a contractor removes damaged components that may show how long the problem existed, consider preserving them. Emergency repairs and safety come first.

Get Written Contractor Findings

Ask contractors to document what they observed. A statement such as "this damage appears longstanding" can become important, especially when supported by photographs.

Gather Prior Records

Useful records may include:

• permits;
• code enforcement records;
• prior listings;
• insurance information;
• contractor records;
• HOA records; and
• other property-related public records.

Preserve Your Purchase Documents

Keep the:

• AS IS contract;
• seller disclosure and flood disclosure;
• inspection report;
• repair addenda;
• listing;
• emails;
• text messages; and
• other communications about the transaction.

Avoid Destroying Evidence

Once major repairs begin, evidence of the original condition can disappear, which makes the claim harder to prove.

Speak With a Florida Real Estate Attorney

A hidden defect case depends on more than showing that something went wrong with the house. The key questions include:

• Did the condition exist before closing?
• Did the seller know about it?
• Was it material?
• Was it readily observable?
• Did the buyer know about it?
• What did the seller represent?
• What did the inspection reveal?
• What damages resulted?

Those questions should be evaluated together.

As Is Does Not Necessarily Mean No Recourse

Florida's AS IS contract gives sellers substantial protection regarding the physical condition of the property. It is not a license to conceal known material defects.

Florida courts have recognized that an as-is clause does not automatically eliminate the disclosure duty established by Johnson v. Davis. If you bought Florida property as is and found a serious hidden problem after closing, the words "AS IS" in your contract should not end the analysis.

Frequently Asked Questions

Can you sue a seller in Florida if you bought the house as is?

Potentially. An as-is clause limits the seller's repair obligations but does not automatically bar claims for failing to disclose known, hidden material defects, fraudulent concealment, or misrepresentation.

Does an as-is contract mean the seller does not have to disclose anything in Florida?

No. Under Johnson v. Davis, a residential seller must disclose known facts that materially affect value, are not readily observable, and are unknown to the buyer. Florida appellate courts have applied that duty to as-is sales.

Does the Florida AS IS contract have a seller disclosure section?

Yes. The Florida Realtors/Florida Bar AS IS Residential Contract includes a seller disclosure provision covering known facts that materially affect the property's value and are not readily observable.

Does a home inspection protect the seller from a nondisclosure claim?

Not automatically. The issue is whether the defect was readily observable and known to the buyer. If the inspection report flagged the same problem, however, the buyer's claim becomes much harder.

Can I undo the sale of an as-is house in Florida?

In some circumstances a buyer may seek rescission, which unwinds the transaction. It is not automatic, and many cases are resolved through money damages instead.

Talk to a Florida Real Estate Attorney About an As-Is Property Dispute

Dunivan Law, PA represents Florida property owners in disputes involving seller nondisclosure, hidden defects, misrepresentations, failed real estate transactions, and other real estate matters.

If you bought a Florida home under an AS IS contract and later discovered a significant defect you believe the seller knew about, contact Dunivan Law to schedule a consultation with a Florida real estate attorney. Call 813.252.0239.

This article is provided for general informational purposes only and does not constitute legal advice. Reading this article or contacting the firm does not create an attorney-client relationship. Every matter depends on its individual facts and circumstances.