In 1985, the Florida Supreme Court held 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. This duty is equally applicable to all forms of real property, new and used.” Johnson v. Davis, 480 So. 2d 625 (Fla. 1985).
To (1) recover damages from, or (2) be entitled to rescind the transaction with, the defendant for nondisclosure in connection with the purchase of residential real property, the plaintiff must prove all of the following:
- There was a condition in the property that: a. Materially and adversely affected the value of the property; and b. Was not readily observable and was not otherwise known to the plaintiff.; and
- The Defendant knew of the condition and did not disclose it to the plaintiff.
Note also the following:
- The materiality of a particular fact is to be determined objectively by focusing on the relationship between the undisclosed fact and the value of the property.
- Whether a condition was “readily observable” is generally a question of fact for the jury to determine.
Joel Ewusiak has represented realtors, brokers, agents, buyers, and sellers in disputes involving the alleged failure to disclose conditions upon the sale of property. Please contact Joel for assistance with your particular matter.