Two separate duties run at the same time. A Florida seller must disclose any fact they know that materially affects the home’s value and is not readily observable by the buyer, and must also hand over a short list of written disclosures that apply no matter what the seller knows. Selling “AS IS” does not switch off either one. The AS IS form allocates who pays for repairs and gives the buyer a walk-away right during the inspection period; inside that same form, paragraph 10(j) is the seller’s own written representation that there are no undisclosed hidden defects.
The standard a seller is measured against
Florida abandoned buyer-beware for residential resales in 1985. In Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), the Florida Supreme Court held, at 629, “that where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.”
Read as a test, that is three conditions at once. The seller has to actually know the fact. The fact has to materially affect value, not merely exist. And it has to be something the buyer could not see and did not know. A cracked driveway in plain view fails the third condition. A slab leak repaired twice under the kitchen, with the receipts in a drawer, satisfies all three.
What the rule removed was the hard part of a buyer’s case. The Fourth District held in Billian v. Mobil Corp., 710 So. 2d 984 (Fla. 4th DCA 1998), that other than requiring the seller to have knowledge of the facts when the contract is formed, Johnson specifies no state-of-mind element for the nondisclosure itself. A buyer does not have to prove the silence was fraudulent or even careless.
Why AS IS does not switch the duty off
The contract most Central Florida resales use is the Florida Realtors and Florida Bar AS IS Residential Contract for Sale and Purchase, form ASIS-7x, Rev. 12/26. Paragraph 10(j), headed SELLER DISCLOSURE, reads: “Seller knows of no facts materially affecting the value of the Real Property which are not readily observable and which have not been disclosed to Buyer.” The sentence tracks the Johnson standard almost word for word, and it is a representation the seller signs.
The warranty disclaimer that follows is carved around it. Except as provided in that preceding sentence, the paragraph says, the seller “extends and intends no warranty and makes no representation of any type, either express or implied, as to the physical condition or history of the Property.” The disclaimer is broad, and the exception it is built around is the disclosure representation. Paragraph 10(j) then adds a second representation: except as otherwise disclosed in writing, the seller has received no notice from any governmental entity of a currently uncorrected building, environmental or safety code violation.
What the AS IS label does control sits in two other paragraphs. Paragraph 11 obliges the seller only to keep the property in the condition it was in on the Effective Date, allowing for ordinary wear and tear. Paragraph 12(a) gives the buyer an Inspection Period, 15 days after the Effective Date if the blank is left unfilled, in which to inspect and, if the property is not acceptable in the buyer’s sole discretion, terminate in writing. The trade is real: the seller is not agreeing to repair anything, and the buyer gets a broad right to leave. Neither term is permission to stay quiet. The Third District rejected that argument in Levy v. Creative Construction Services of Broward, Inc., 566 So. 2d 347 (Fla. 3d DCA 1990), finding no “as is” contractual exception to the duty Johnson imposes. Our walkthrough of how the inspection period actually works covers the buyer’s side of that bargain.
The written disclosures that do not depend on what you know
The Johnson duty is knowledge-based. A second set of requirements is not: they attach to the transaction, and a seller who knows of no problem at all still owes them.
| Disclosure | When it applies | What the rule requires | Authority |
|---|---|---|---|
| Flood disclosure | Every sale of residential real property | Complete and provide the statute’s FLOOD DISCLOSURE form at or before the sales contract is executed, stating whether the seller knows of flooding that damaged the property during their ownership, has filed a flood damage claim including with the National Flood Insurance Program, and has received flood damage assistance including from FEMA | F.S. 689.302 |
| Property tax summary | Every sale of residential property | Present a PROPERTY TAX DISCLOSURE SUMMARY at or before execution of the contract, warning the buyer not to rely on the seller’s current taxes because a change of ownership or improvements triggers reassessment. It must be in the contract or attached to it | F.S. 689.261(1) |
| Radon notice | Any sale or rental of a building | The statute’s exact RADON GAS paragraph, on at least one document, form or application executed at or before the contract | F.S. 404.056(5) |
| Energy-efficiency information | Sale of real property with a building for occupancy on it | Provide information notifying the buyer of the option of an energy-efficiency rating on the building, at or before the buyer signs | F.S. 553.996 |
| Lead-based paint | Housing built before 1978, with narrow exceptions | EPA-approved pamphlet, disclosure of known lead-based paint and hazards including the basis, location and condition, a list of available records and reports, a 10-day opportunity to inspect, and a signed contract attachment | 40 CFR 745.107, 745.110, 745.113 |
| Association disclosure | Homeowners association or community governed property | Contract carries the warning, in capitals, that the buyer should not execute it before receiving and reading the association or community disclosure | ASIS-7x paragraph 10(g) |
| Foreign seller status | Seller is a foreign person under FIRPTA | Seller must inform the buyer in writing | ASIS-7x paragraph 10(i) |
One distinction in that table is worth stating plainly, because the paperwork hides it. The AS IS contract reproduces the radon language and the property tax summary inside paragraph 10, so signing the contract satisfies both. It does not contain the flood disclosure, which is a separate form the seller completes. The contract’s paragraph 10(d) does something different: it advises the buyer to verify by elevation certificate which flood zone the property sits in and whether a lender will require flood insurance. Advice to the buyer is not the seller’s statutory disclosure. We cover why the flood-zone map is not the whole flood question separately.
The lead-based paint rule is federal and it is the one with real teeth. It covers target housing: built before 1978, excluding housing for the elderly or persons with disabilities and studio-style dwellings unless a child under six lives or is expected to live there. The seller must allow the buyer a 10-day period to conduct a risk assessment or inspection unless the parties mutually agree in writing on a different period, and the buyer may waive it in writing. Someone who knowingly fails to comply is jointly and severally liable to the buyer for three times the damages incurred.
Paragraph 10(b) adds a permits representation with an unusual follow-through. The seller states they know of no improvements made without required permits, or under permits never properly closed under s. 553.79. A seller who does identify such work must then deliver all plans and documentation in their possession, knowledge or control relating to it. Disclosure alone is not the whole obligation, and an open or expired permit has its own path to resolution.
What Florida law lets a seller leave out
Section 689.25 settles two questions that come up often. The fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide or death is not a material fact that must be disclosed. Neither is the fact that an occupant is or was infected with HIV or diagnosed with AIDS. Subsection (2) closes the loop: no cause of action arises against the owner, their agent, or a licensee under chapter 475 for failing to disclose either one.
One more boundary follows from the rules already quoted rather than from a separate statute: the duty is a disclosure duty, not a repair duty. Telling the buyer about the failing water heater satisfies it, and the buyer then decides what to do with the information inside the inspection period.
Filling out the form so it holds up
- Build the list from records, not memory. Pull insurance claim files, invoices, warranty paperwork and permit history for your whole period of ownership, then disclose from the documents.
- Answer the three flood questions from the claim file. Whether you filed with the National Flood Insurance Program and whether you received FEMA assistance are matters of record, and each is asked separately from whether flooding damaged the home.
- On open permits or unpermitted work, deliver the paperwork. Paragraph 10(b) wants the plans and documentation you hold, not just an acknowledgment that the work exists.
- For a pre-1978 home, run the lead attachment as written: pamphlet, disclosure, records list, the 10-day opportunity, signatures, and a copy kept three years.
- Write “unknown” only when it is true, and date everything. A truthful “unknown” is defensible. A “no” you have not verified is what creates exposure.
- Disclose before the inspection period closes rather than at the closing table. The room to negotiate a credit exists while the buyer still holds a termination right.
Frequently asked questions
Does an AS IS contract let a seller stay quiet about a known hidden defect?
No. The AS IS form settles who pays for repairs and gives the buyer a broad right to terminate during the inspection period, and that is the extent of it. Inside the same form, paragraph 10(j) is an affirmative representation that the seller knows of no facts materially affecting the value of the real property which are not readily observable and have not been disclosed. The Third District addressed the argument directly in Levy v. Creative Construction Services of Broward, Inc.
Do I have to tell buyers that someone died in the house?
Florida law says you do not. Under s. 689.25(1)(b), the fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide or death is not a material fact that must be disclosed in a real estate transaction, and subsection (2) bars a cause of action against the owner, their agent or a chapter 475 licensee for not disclosing it. Note what the statute does not do: it does not protect an inaccurate answer. The protection covers staying silent, not saying something untrue if you are asked.
Am I required to inspect or test my own home before listing it?
No Florida statute requires a seller to order an inspection, and the federal lead rule says in terms that nothing in it implies a positive obligation to conduct an evaluation. The practical case for a pre-listing inspection is different: once you know about a material hidden defect you must disclose it, so the question is whether you would rather learn about it on your own schedule, with time to get quotes, or during the buyer’s inspection period when the buyer controls the timing.
Where to go from here
Three of our breakdowns pair directly with the disclosure form: what a past sinkhole claim means for the sale, how the tax bill is split at closing, and, in a governed community, the difference between the HOA disclosure, the documents and the estoppel.
For a sense of where your home sits before the paperwork starts, run it through our home valuation tool. When you want the disclosures, the repair requests and the price handled as one decision rather than three, book a strategy session with our team at mvphomegroup.com/nelsoncruz. A defect disclosed early is something you can price and credit against. The same defect found late is leverage in someone else’s hands.
Nelson Cruz, P.A.
Founder & CEO
MVP Home Group, Real Broker LLC
Nelson brings nearly two decades in law enforcement to his work in real estate. View Nelson’s profile or contact our team at 407-901-9939 or [email protected].
Featured image: AI-generated editorial illustration of a multi-page residential property disclosure form, its paired yes-and-no checkbox columns and ruled answer lines visible but the wording illegible, resting as a stack on a plain dark desk beside a capped pen and a part-open manila folder. Not a particular property or transaction.