In Florida, all sellers of residential property are obligated to disclose any known defective items, or facts, that materially affect the value of the property. If these material facts are not disclosed to the buyer, the buyer may have what is commonly referred to as a fraudulent nondisclosure or fraudulent concealment claim against the seller.
Many sellers attempt to argue that the residential contract contains an “as is” provision and that they are selling the property “as is” and without recourse. While this is favorable language for the seller, an “as is” provision in a residential purchase-sale contract does not waive the duty imposed on the seller to disclose known defects that materially affect the value of the property, and which are not readily observable. Solorzano v. First Union Mortgage Corp., 896 So.2d 847, 849 (Fla. 4th DCA 2005).
A non-disclosure claim deals with facts that materially affect the value of residential real property and are not readily observable. The use of the language “readily observable” has been found to mean: “[I]nformation [that] is within the diligent attention of any buyer. To exercise diligent attention…a buyer would be required to investigate any information furnished by the seller that a reasonable person in the buyer’s position would investigate and take reasonable steps to ascertain the material facts relating to the property and to discovery them—if, of course, they are reasonably ascertainable.” Lorber v. Passick as Tr. of Sylvia Passick Revocable Tr., 327 So. 3d 297, 302 (Fla. 4th DCA 2021), quoting Nelson v. Wiggs, 699 So.2d 258, 260-61 (Fla. 3d DCA 1997)
In order to advance a non-disclosure claim, the buyer of the property has to prove that: (1) the seller of a home had knowledge of a defect in the property, (2) the defect must materially affect the value of the property, (3) the defect must be not readily observable and must be unknown to the buyer, and (4) the buyer must establish that the seller failed to disclose the defect to the buyer. Johnson v. Davis, 480 So. 2d 625 (Fla. 1985).
The first element, “the seller must have knowledge of a defect” is usually the hardest element to prove because this requires the buyer to “prove the seller’s actual knowledge of an undisclosed material defect.” To prove actual knowledge, the buyer usually needs to find evidence establishing the seller knew of the defect. This is typically done via conversations with neighbors, repairmen or potential buyers where the sale did not close. If you can locate text messages, repair invoices or emails related to the issue, you may be able to establish this element of the claim.
While note every defect related to the sale of a property is actionable, Seller can take active steps to conceal materials defects “affecting the value of the property which are not readily observable and are not known to the buyer.” If you believe you are the victim of fraudulent nondisclosure or fraudulent concealment claim , please contact us for a free consultation.