A buyer closes on a Coral Springs home in June. In October, after the first heavy rain, water pours through the ceiling in the master bedroom. The roofer who comes out finds extensive rot and tells the buyer this leak has been active for at least two years. The seller never mentioned it. The inspection missed it because the report was done during the dry season and the damage was above the ceiling line.
That buyer has a case. Florida law doesn’t let sellers hide problems they know about just because the buyer didn’t catch them during a walkthrough.
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Johnson v. Davis Changed Everything for Florida Home Sellers
Before 1985, Florida followed the old caveat emptor rule — buyer beware. If you bought a house with problems, that was your problem. The Florida Supreme Court threw that out in Johnson v. Davis, 480 So. 2d 625 (Fla. 1985). The decision established that residential sellers have a legal duty to disclose facts they know that materially affect the property’s value, aren’t readily observable, and aren’t known to the buyer.
This isn’t a fraud claim. The seller doesn’t have to intend to deceive you. They just have to know about a material defect and not tell you. That’s enough.
The rule applies to residential property. It doesn’t automatically extend to commercial deals, vacant land, or investment properties the same way.
What Counts as a Material Latent Defect
Florida courts interpret “materially affects value” broadly. It’s not just structural collapse. It’s anything that would reasonably influence a buyer’s decision or the price they’d pay.
Common examples attorneys see in South Florida include chronic roof leaks, hidden mold behind walls, foundation movement, past flooding or drainage problems, sinkhole activity, significant electrical or plumbing defects, and unpermitted work that failed inspections. If the seller filed an insurance claim for water damage two years ago and repaired the drywall but never fixed the underlying leak, that’s the kind of thing they have to disclose.
The defect has to be latent — not readily observable. A huge crack running down the exterior wall is obvious. Water staining hidden under carpet or mold growing inside the air handler isn’t. If a reasonable buyer doing a normal inspection wouldn’t spot it, it’s latent.
And the seller has to actually know about it. They’re not required to hire engineers and inspectors before listing. But if they had a roofer out last year who told them the roof needed replacement, or if they’ve been setting out buckets during storms, they know.
The As-Is Trap
Buyers see “as-is” in a contract and assume the seller can hide anything. That’s wrong. As-is means the seller won’t make repairs. It doesn’t erase the duty to disclose known material defects.
Florida courts have said this repeatedly. You can sell a house as-is and still get sued for nondisclosure if you knew the foundation was sinking and said nothing. The as-is clause shifts repair responsibility. It doesn’t give sellers a free pass to conceal problems.
Sellers who think as-is protects them from disclosure duties are setting themselves up for litigation. Buyers who think as-is means they have no recourse if they discover hidden defects are giving up rights they still have.
What Florida Sellers Must Disclose by Statute
The Johnson duty comes from case law. Florida also has specific statutory disclosure requirements.
Under Florida Statutes § 689.261, sellers must provide a property tax disclosure summary. It warns buyers that the current property tax bill may not reflect what they’ll pay after the sale. Homestead exemptions, Save Our Homes caps, and reassessment at market value can all cause taxes to jump. Buyers need to know that upfront.
Florida Statutes § 404.056(5) requires a radon gas disclosure. Radon is a naturally occurring radioactive gas that can cause lung cancer. Elevated levels have been found in buildings throughout Florida. The disclosure is mandatory in most residential transactions.
For homes built before 1978, federal law requires lead-based paint disclosures. Sellers must give buyers an EPA pamphlet and allow time for a lead inspection if the buyer wants one.
HOA and condo association disclosures are another layer. Sellers must provide governing documents, current assessments, and information about pending special assessments or litigation. A buyer who closes without knowing about a $20,000 special assessment coming due in six months has a problem — and potentially a claim.
The Disclosure Forms Most Florida Transactions Use
Florida doesn’t have one mandatory seller disclosure form imposed by statute. But in practice, almost every residential deal uses the Florida Realtors/Florida Bar contract, which comes with a Seller’s Property Disclosure form.
The form asks about the roof, plumbing, electrical, structural issues, flooding, drainage, sinkholes, environmental hazards, and HOA matters. It’s designed to track the Johnson standard. Sellers who skip sections or answer vaguely are creating evidence that can be used against them later.
Real estate agents push sellers to complete these forms carefully for a reason. A seller who checks “unknown” for every question looks like they’re trying to avoid disclosure. A seller who writes “roof has minor wear” when they know it leaks is setting up a misrepresentation claim.
What Buyers Can Do After Closing if Defects Surface
Say you close in March and discover in August that the air conditioning system is shot. The compressor is rusted through and the evaporator coil is corroded. An HVAC tech tells you this didn’t happen overnight — the system has been failing for years. You pull the seller’s disclosure form and see they marked “no known issues” with HVAC.
You have options. Florida law recognizes several theories buyers can use to go after sellers who hide defects.
The most common is a Johnson v. Davis nondisclosure claim. You prove the seller knew about the defect, it materially affected the value, it wasn’t readily observable, and they didn’t disclose it. You don’t need to prove intent to defraud. Just knowledge and silence.
Fraudulent misrepresentation is another path. If the seller made affirmative false statements — “the roof is only five years old” when it’s actually fifteen and leaking — and you relied on that, you can pursue fraud. Fraud requires proof the seller knew the statement was false and intended you to rely on it.
Negligent misrepresentation applies when the seller made false statements without reasonable care. They didn’t necessarily lie on purpose, but they were reckless about accuracy.
Breach of contract comes into play if the sales contract contained specific warranties or repair promises the seller didn’t follow through on. Some contracts include language like “seller represents that all systems are in working order.” If that turns out to be false, it’s a contract claim.
In extreme cases, buyers can seek rescission — undoing the entire transaction. Courts don’t grant this lightly. It usually requires a defect so severe that the buyer wouldn’t have purchased the property at any price if they’d known. A major structural failure or environmental contamination might qualify. A bad water heater won’t.
Timing Matters: Statutes of Limitation
Florida law imposes deadlines for filing claims. The specific statute of limitations depends on the type of claim. Fraud claims generally have a different deadline than breach of contract claims. Some deadlines run from the date of closing. Others run from when the buyer discovered or should have discovered the problem.
Buyers who wait too long lose their claims entirely. If you discover an undisclosed defect, talk to an attorney right away. Gathering evidence, obtaining expert reports, and filing suit all take time. The clock is already running.
How These Cases Actually Work
A buyer who discovers a hidden defect after closing typically starts by hiring an expert. For a roof, that’s a licensed roofer who can document the damage and estimate how long it’s been there. For mold, it’s a mold assessor who can test and identify the moisture source. For structural issues, it’s an engineer.
The expert report becomes the foundation of the case. It establishes that the defect existed before closing and wasn’t caused by something the buyer did after moving in. Defense attorneys will argue the buyer caused the problem or that it developed post-closing. A solid expert report shuts that down.
The next step is investigating what the seller knew. Attorneys subpoena the seller’s insurance records, pull permits and code enforcement files, and review the seller’s emails and texts. If the seller filed an insurance claim for water damage in 2022 and then sold the house in 2024 without disclosing it, that’s strong evidence of knowledge.
The seller’s disclosure form matters. If they checked “no known issues” next to the relevant category, that’s a factual misrepresentation you can prove. If they left it blank or wrote “unknown,” it’s weaker but still usable — especially if you can show they had actual knowledge.
Most of these cases settle. Sellers don’t want to go to trial and explain to a jury why they hid a leaking roof. Their homeowners insurance may cover the claim, which gives the insurance company an incentive to settle rather than pay defense costs through trial. Buyers who have strong evidence of knowledge and damages often recover repair costs, diminution in value, and attorney’s fees.
What Readily Observable Means in Practice
The Johnson duty only applies to defects that aren’t readily observable. If a buyer could have seen the problem with reasonable care, the seller isn’t liable for failing to point it out.
Courts ask whether a reasonable buyer doing a normal inspection would have discovered the issue. A cracked foundation visible from the walkway is readily observable. A crack hidden behind finished drywall in the garage isn’t. A roof that sags noticeably is observable. A roof that only leaks during heavy rain when the wind is from the southeast isn’t.
Buyers who skip inspections or ignore red flags hurt their claims. Say a buyer’s inspector notes “evidence of prior water intrusion, recommend further investigation” and the buyer closes without following up. If mold turns up later, the seller can argue the buyer had notice and chose not to investigate. That doesn’t necessarily kill the claim, but it weakens it.
Thorough inspections help buyers in two ways. They catch problems before closing so you can renegotiate or walk away. And they establish what was observable at the time of sale, which defines the scope of latent defects the seller had a duty to disclose.
South Florida Issues That Come Up Constantly
Water intrusion and mold are the most common nondisclosure disputes in Broward and Miami-Dade counties. The climate here makes mold grow fast. A small roof leak or plumbing issue that might stay dry in Arizona becomes a mold problem in Fort Lauderdale in weeks.
Sellers who had a roof leak, cleaned up the visible damage, and didn’t fix the underlying problem are setting up a nondisclosure claim. Buyers who move in and find mold behind the walls six months later usually discover the seller knew. There’s almost always a prior repair invoice or an insurance claim.
Hurricane damage is another pressure point. Sellers who had roof or window damage from a storm, filed an insurance claim, made cosmetic repairs, and sold without disclosing the full extent of the damage are common. Buyers find out when the next storm hits and water pours in through the same spot.
Condos and HOAs add complexity. Special assessments, pending litigation, and building defects are all material facts. A seller who knows the condo association is about to levy a $30,000 assessment for balcony repairs and closes without telling the buyer is liable. The buyer who gets hit with that assessment three months after closing has a claim.
Flood zones and drainage matter more here than almost anywhere else. A seller who knows the property floods during heavy rain and doesn’t disclose it is asking for trouble. Buyers rely on flood zone maps, but those don’t tell you whether the street floods every summer or whether the yard turns into a pond during king tides.
What Sellers Should Do to Avoid Liability
Disclose everything material. When in doubt, disclose. A seller who lists every issue they know about and prices the property accordingly won’t face a nondisclosure claim. A seller who hides a roof leak to get another $15,000 at closing is risking a lawsuit that costs far more than that.
Complete disclosure forms carefully. Don’t leave blanks. Don’t check “unknown” for things you actually know. If you had a plumber out last year to fix a slab leak, disclose it. If you’ve noticed cracks in the driveway getting worse, disclose it. If the air conditioner has been making a grinding noise, disclose it.
Keep records. If you made repairs, keep the invoices. If you filed insurance claims, keep the documentation. If you had inspections or estimates done, keep those too. Sellers who can show they disclosed issues and made good-faith repairs are in a much better position than sellers who have no paper trail and claim they didn’t know.
Talk to an attorney before listing if you’re aware of significant issues. An attorney can help you draft accurate disclosures and price the property to account for known defects. Selling as-is doesn’t eliminate disclosure duties, but it does shift expectations. An attorney can structure the deal to minimize liability.
What Buyers Should Do to Protect Themselves
Get thorough inspections. General home inspection, roof inspection, mold inspection, termite inspection, sewer scope. The money you spend on inspections is cheap compared to discovering a $40,000 problem after closing.
Read the seller’s disclosures carefully. If something doesn’t make sense or seems incomplete, ask follow-up questions. If the seller says they don’t know whether the roof leaks, insist on a roof inspection. If they mention prior water damage, find out what caused it and whether it was fully repaired.
Pull permits and code enforcement records yourself. Sellers are supposed to disclose unpermitted work, but they don’t always do it. A quick records search at the county can reveal whether major work was done without permits or whether there are open code violations.
If you discover a problem after closing, act fast. Hire an expert to document it. Gather evidence about what the seller knew. Talk to an attorney before the statute of limitations runs. Waiting six months to decide whether you want to pursue a claim can cost you the right to pursue it at all.
Whether you are buying a home, dealing with a landlord dispute, or recovering from an injury, Eric Goldman can help. Serving clients throughout Florida.
When You Find Out the Seller Lied
Buyers who discover undisclosed defects feel betrayed. You trusted the seller’s disclosures. You paid for inspections. You relied on what you were told. Then you find out it was all false.
Florida law gives you remedies, but you have to move quickly. Document the defect with photos and expert reports. Pull the seller’s disclosure forms and compare them to what you’ve found. Gather any evidence that shows the seller had prior knowledge — repair invoices, insurance claims, emails, texts, anything.
An attorney can send a demand letter outlining the nondisclosure and the damages. Many sellers settle at that stage rather than face litigation. If they don’t, you file suit. You’re looking at repair costs, diminution in value, and potentially attorney’s fees depending on the contract language and the claims you bring.
These cases are fact-intensive. Every detail matters. The more evidence you have that the seller knew about the defect and hid it, the stronger your case. Sellers who left a clear paper trail — an insurance claim for water damage, an estimate for roof replacement, emails discussing the problem — make your attorney’s job easy.
Sellers who covered their tracks make it harder, but not impossible. Expert testimony about how long a defect has existed can establish it was there before closing. Testimony from neighbors, prior tenants, or contractors who worked on the property can establish the seller’s knowledge. Discovery in litigation often uncovers emails or texts the seller thought were gone.
If you’re sitting in a house you just bought and water is coming through the ceiling, you’re not powerless. Florida law puts the burden on sellers to disclose what they know. When they don’t, you have options. Use them before the window closes.
