Seller Didn’t Disclose Problems With the House in Florida: What Can a Buyer Do?
Buying a home is already a major financial commitment. Finding out after closing that the seller knew about a serious problem and never told you can turn that purchase into an expensive nightmare.
Maybe the roof leaked every time it rained. Maybe there was recurring water intrusion, mold behind a wall, foundation damage, unpermitted construction, plumbing problems, or another condition that was covered up before the sale.
If the seller knew about a significant problem and failed to disclose it, Florida law may give you options.
Florida does not simply allow a home seller to remain silent about every problem with the property. In certain circumstances, a seller has an affirmative duty to disclose defects to a buyer.
Does a Florida Seller Have to Disclose Problems With a House?
Generally, yes, if certain requirements are met.
The Florida Supreme Court established an important rule in Johnson v. Davis. In a residential real estate transaction, a seller has a duty to disclose facts when:
- The seller knew about the condition;
- The condition materially affects the value of the property;
- The condition was not readily observable;
- The buyer did not already know about it; and
- The seller failed to disclose it.
This rule can apply to both new and used residential property.
The important point is that Florida law does not necessarily require the seller to make an affirmative false statement. In some circumstances, remaining silent about a known hidden defect can itself create liability.
What Is a “Material” Defect?
Not every problem with a house will support a claim.
A material defect is generally one significant enough to affect the property's value or desirability.
Roof Leaks and Water Intrusion
A seller may have repaired drywall, painted over water stains, or represented that an old leak was completely repaired when the underlying roof or moisture problem remained.
Water intrusion is particularly significant because it can cause additional problems involving mold, wood rot, flooring, insulation, electrical systems, and structural components.
Mold
Finding mold after buying a home does not automatically mean the seller is responsible.
But the situation can be very different if evidence shows that the seller previously knew about recurring moisture or mold and concealed the condition rather than disclosing it.
Foundation or Structural Problems
Cracking, settlement, sinkhole-related conditions, failed structural components, or prior structural repairs can substantially affect a property's value.
Evidence that the seller previously obtained estimates, engineering reports, repair proposals, or insurance claims concerning the condition can become important.
Plumbing or Sewer Problems
Repeated sewer backups, deteriorated pipes, leaking supply lines, slab leaks, or failed septic systems can be extremely expensive to repair.
A seller's knowledge of previous repairs or recurring problems can become relevant to whether the condition should have been disclosed.
Unpermitted Additions or Renovations
A buyer may discover after closing that a room addition, electrical work, plumbing modification, converted garage, pool, or other improvement was completed without required permits.
Whether this creates a viable nondisclosure claim depends on the circumstances, including what the seller knew and how significant the issue is.
Previous Flooding
Florida has separate statutory flood-disclosure requirements in residential transactions, in addition to the broader principles governing material defects.
Previous flooding can also become particularly important when evidence suggests that a seller knew about recurring flooding or water intrusion that was not obvious when the buyer inspected the property.
Termite or Wood-Destroying Organism Damage
Past infestation may not automatically create liability, particularly if it was properly treated and disclosed.
But significant concealed damage or an ongoing infestation known to the seller can present a different issue.
What If the House Was Sold “As Is”?
This is one of the most common misconceptions in Florida real estate.
“As is” does not necessarily mean “the seller can hide defects.”
An as-is provision generally addresses the condition in which the buyer agrees to accept the property and can limit the seller's obligation to make repairs.
It does not necessarily eliminate a seller's obligation to disclose a known material defect that is not readily observable and is unknown to the buyer.
So if you purchased a home using an AS IS Residential Contract for Sale and Purchase, you should not assume that you gave up every potential claim involving a hidden defect.
The specific contract, disclosures, inspection history, communications between the parties, and facts surrounding the defect still matter.
“But Shouldn't My Home Inspector Have Found It?”
Not necessarily.
One of the most important distinctions in a Florida nondisclosure case is whether the condition was readily observable.
Some defects are obvious. Others may be hidden:
- behind drywall;
- underneath flooring;
- inside an attic or crawlspace;
- beneath recently applied paint;
- behind cabinets;
- underground;
- inside plumbing or electrical systems; or
- temporarily disguised by a repair.
The Florida Supreme Court's disclosure rule focuses on whether the defect was readily observable and known to the buyer.
That means a seller may not necessarily escape responsibility simply by arguing that the buyer could have discovered the problem through a more extensive investigation.
A separate question may exist as to whether an inspector or another professional bears responsibility. In some cases, more than one party may potentially be involved.
How Do You Prove the Seller Knew?
This is often the central issue.
A seller rarely admits: “Yes, I knew the roof leaked and deliberately decided not to tell you.”
Instead, knowledge is often established through circumstantial evidence.
Useful evidence can include:
- Previous repair invoices;
- Roofing estimates;
- Plumbing invoices;
- Pest-control records;
- Insurance claims;
- Emails or text messages;
- Communications with contractors;
- Prior inspection reports;
- Permitting records;
- HOA or condominium correspondence;
- Photographs;
- Previous real estate listings;
- Statements from neighbors;
- Statements from contractors who previously worked on the property;
- Evidence of recent cosmetic repairs over the damaged area; and
- The seller's own disclosure forms.
For example, imagine a buyer discovers extensive water damage two months after closing.
A contractor then says the damage appears to have existed for years. The buyer obtains records showing that the seller hired a roofing company twice for leaks in the same location.
That evidence may tell a very different story than a seller simply saying, “I never knew there was a problem.”
What If the Seller Lied on the Seller's Disclosure?
A seller disclosure form can become important evidence.
Suppose a seller answered “no” when asked about known roof leaks, plumbing problems, structural issues, or water intrusion.
If documents later show that the seller had previously hired contractors to address exactly that condition, the written disclosure may become significant evidence in a claim.
Depending on the facts, a buyer's potential claims may extend beyond nondisclosure and include theories such as fraudulent or negligent misrepresentation.
What If the Seller Covered Up the Problem?
Concealment can make a case particularly significant.
Examples might include:
- Painting over recurring water stains immediately before listing;
- Installing flooring over known damaged areas;
- Covering cracks without addressing the underlying structural problem;
- Removing evidence of mold without fixing the moisture source;
- Providing false information about previous repairs; or
- Telling the buyer a recurring problem was permanently fixed when it was not.
The key question is not simply whether something was repaired before the sale.
Homeowners are allowed to repair their homes.
The issue is whether a seller knew that a material problem remained and failed to disclose it, or affirmatively misrepresented the condition of the property.
Can I Sue the Seller After Closing?
Potentially.
Closing on the property does not necessarily eliminate a buyer's rights concerning a concealed defect discovered afterward.
Depending upon the facts, potential legal theories may include:
- Failure to disclose a material defect;
- Fraudulent misrepresentation;
- Fraudulent concealment;
- Negligent misrepresentation; and
- Other contract or statutory claims.
The appropriate claim depends heavily on what happened before the sale, what the seller knew, what was disclosed, what was represented, and what damages resulted.
What Can a Buyer Recover?
The available remedy depends on the particular claim and facts.
Potential relief can include compensation for damages caused by the undisclosed condition. In certain circumstances, a buyer may seek rescission, essentially asking that the transaction be unwound.
The proper measure of damages can become complicated.
For example, a $30,000 repair estimate does not automatically mean that the buyer's legal damages equal $30,000.
The nature of the defect, impact on property value, contract terms, repairs required, and legal theory all matter.
This is one reason it is important to evaluate the claim before undertaking major repairs or disposing of evidence.
What Should I Do If I Discover a Hidden Defect After Buying a Florida Home?
If you believe the seller failed to disclose a significant condition, consider taking these steps before the evidence disappears:
1. Document the Problem
Take photographs and videos.
Preserve inspection reports, invoices, estimates, damaged materials when practical, and communications concerning the condition.
2. Do Not Destroy Evidence Unless Necessary
If emergency repairs are required to stop active water intrusion or another dangerous condition, protecting the property obviously comes first.
But document the condition thoroughly before repairs whenever possible.
3. Ask the Contractor What They Observe
A roofer, plumber, engineer, mold professional, or other contractor may be able to identify whether the problem appears recent or longstanding.
Keep written reports and estimates.
4. Review Your Closing Documents
Locate:
- The purchase contract;
- Seller disclosure;
- Inspection report;
- Repair addenda;
- Emails;
- Text messages;
- Listing materials; and
- Communications with the seller, agents, inspectors, or contractors.
5. Avoid Accusing the Seller Before Understanding the Evidence
It can be tempting to immediately text the seller or real estate agent.
Sometimes those communications produce useful information. Sometimes they cause everyone involved to stop communicating and contact attorneys.
It can be useful to first determine what evidence exists and what information you need.
6. Speak With a Florida Real Estate Attorney
These cases are highly fact-specific.
The existence of a defect alone is not enough. A lawyer will typically want to determine what the seller knew, when the seller knew it, whether the condition was material and hidden, what representations were made, and what damages resulted.
Is the Real Estate Agent Responsible Too?
Possibly.
Florida courts have recognized disclosure obligations involving real estate brokers and agents under certain circumstances.
Whether an agent may be liable depends on what the agent knew, what was communicated, whom the agent represented, and the specific facts surrounding the transaction.
For example, there is a significant difference between an agent who had no knowledge of a hidden leak and an agent who received a contractor's report describing the leak but represented to the buyer that no such problem existed.
How Long Do I Have to Bring a Claim?
Do not assume that you can wait indefinitely.
Different causes of action may have different statutes of limitation, and determining when a claim accrued can itself become a legal issue.
The passage of time also creates a practical problem: evidence disappears.
Contractors forget conversations. Documents get lost. Homes are repaired. Sellers move. Electronic messages disappear.
If you discover a substantial condition that you believe existed before closing, it is generally better to investigate promptly.
Talk to a Florida Real Estate Attorney About an Undisclosed Defect
Discovering a major problem after buying a home can leave you wondering whether you simply inherited an unfortunate repair or whether the seller knew about the condition and failed to tell you.
That distinction matters.
Dunivan Law, PA represents Florida property owners in real estate disputes, including claims involving undisclosed defects, misrepresentations, failed transactions, title issues, and other real estate problems.
If you purchased Florida property and discovered a significant problem that you believe the seller knew about before closing, contact our office to discuss the circumstances and determine what options may be available.
This article is provided for general informational purposes only and is not legal advice. Reading this article or contacting the firm does not create an attorney-client relationship. Every case depends on its particular facts.
