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Disclosure of construction defects in condominium sales in Florida, P.2

In our previous post, we noted that Florida law requires condominium sellers to make a number of specific disclosures to buyers. Statutory law does not explicitly require condo sellers to make disclosures regarding construction defects or litigation concerning construction defects to sellers. That requirement, instead, comes from case law.

Florida case law requires residential real estate sellers to disclose all known facts which materially affect the value of the property to buyers. The Florida Association of Realtors publishes proposed disclosure statements to help sellers fulfill their legal duty to disclose, and these disclosure statements can be a great resource for sellers, particularly if they are in conjunction with the assistance of an experienced attorney. 

Disclosures can and should include facts related to: pending claims and assessments; occupancy and ownership information; material alterations to the unit; environmental hazards; flooding problems; plumbing and electrical issues; pest problems; heating and cooling issues; problems related to fire safety features; structural issues, and so on.

One important point to make about disclosures in condominium sales is that these disclosures are only based upon the seller’s knowledge of the property and do not constitute a warranty. In order for a buyer to hold a condo seller responsible for failure to disclose, the buyer would have to prove that: the seller knew about the defect in question; the defect materially affects the value of the property; the defect was not readily observable and was unknown to the buyer; and the seller failed to disclose the defect.

Condo sellers and buyers can both benefit from working with an experienced attorney, not only on the front end of a sale to prevent problems from arising, but also on the back end of a sale, when problems come up regarding defect disclosure or other matters. An experienced attorney can help ensure a home buyer or seller’s rights are protected.

Source: Jensen v. Bailey, 76 So.3d 980 (Fla. 2nd DCA 2011)

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