Misconception of AS-IS Contract and Disclosure

When a party sells a property, they are required to fill out a Seller’s Real Property Disclosure Statement (“Property Disclosure”).  This Property Disclosure covers a wide array of questions about the condition of the property and knowledge of facts that materially affect the property.  Many are unaware that these disclosures are mandated by Florida law.  Often, sellers proceed quickly through the Property Disclosure checking “no” for all answers without taking the time to read and contemplate the answer to each request for disclosure.  It is important to be aware of the potential liability that can result for a seller who does this.

A seller is required to disclose any known facts or conditions about their property that have a substantial impact on its value or desirability and that others cannot easily observe.  Failure to do so can result in a future lawsuit for the seller on the basis of their failure to disclose.

The belief that having an As-Is Contract negates the requirement to disclose is inaccurate.  An As-Is Contract never grants a seller the right to omit items on their Property Disclosure and does not waive a buyer’s right to pursue a seller for failing to disclose a known defect which was not readily observable to them.  In fact, even an As-Is Contract followed by a buyer’s inspector failing to observe the defect does not waive a buyer’s right to pursue a seller for failing to disclose a known defect.

In order for a seller to protect themselves from a potential lawsuit after the sale of their property, it is important that the seller read through the Property Disclosure and ensure that their answers are as accurate and honest as possible. As always, should you have any questions about Subsurface Rights, please contact your real estate attorney.

Sincerely,

Berlin-Patten, PLLC

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

www.berlinpatten.com

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2 thoughts on “Misconception of AS-IS Contract and Disclosure

    • You are correct. Florida law provides that, with some exceptions, a home seller must disclose any facts or conditions about a property that have a substantial impact on it value or desirability that others cannot easily observe themselves. This comes from the case of Johnson v. Davis, 480 So. 2d 625 (Fla. 1985). The Seller’s Disclosure itself is a form that covers many things that a property owner would want to know about or find material to the purchase. The form itself is not required by law, but is what is customarily used to ensure that the law is followed. So, if you do choose to fill out a Seller’s Disclosure, always be sure it is honest and accurate. Additionally, note that we are speaking of actual knowledge and failure to disclose. This would not include a seller who fails to disclose something because they had no actual knowledge.

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