If you are a buyer or a seller of a home in Florida, there are two legal areas you need to watch out for. One is the so-called "as-is" contract, which is seen whenever the home purchased is not brand-new from a developer or built to spec by the buyer.
The other is the "mandatory disclosure" requirement, a seemingly straightforward concept first defined in the Third District Court of Appeals case Johnson v. Davis. That case held that the seller of a home was responsible for disclosing "material defects not readily apparent" to the buyer of the home, or not readily ascertainable on casual observation.
Since then, buyers, sellers, and courts have been trying to decide what is a material defect, and when it is readily apparent; and how long after the sale the seller is liable for a defect. A cracked pool deck would seem to be an obvious defect; but what if the seller had believed the defect was simply a cosmetic issue and repaired it in good faith? (Slitor v. Elias 544 So. 2d 255 (Fla. 2d DCA 1989) In that case, the court held that if the seller had no reason to believe a defect was a defect, they could not be held liable for failing to disclose it.
In addition, the courts have said that buyers cannot rely upon the seller's representation to their detriment, if those facts are "reasonably ascertainable." Florida home buyers should take special note of Nelson v. Wiggs, 699 So. 2d 258 (Fla. 3d DCA 1997). The appellate court reversed a judgement for buyers who purchased a home near the Everglades and later claimed the seller had failed to warn them the home was in a flood zone. The Third DCA stated, rather bluntly, that the buyer had a duty to discover facts which could be easily discovered, in this case, by looking up the FEMA maps.
The most prudent course for any buyer or seller is to check and check again. Sellers should disclose all flaws and faults with their homes, no matter how minor they may seem. Even the Slitors' crack in the pool deck should have been mentioned, if only as something repaired. Buyers should assume that floods have occurred at their property until proven otherwise, and never take the seller's breezy assurance that they've never had a flood. In Florida, there has always been a flood.
The best course for all property buyers and sellers should be to consult legal professionals before money changes hands, not after. Have your contract reviewed by attorneys, especially if either party made any handwritten changes to the boilerplate document. Title insurance is never money ill-spent. At Stewart & Riley, there are professionals who can assist you in all areas from review of your disclosure documents to the final closing, to ensure that a lawsuit need never spoil your housewarming.