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Is a Seller’s Disclosure Required?

A buyer insists on seeing the Seller’s Property Disclosure. Equally adamant, the seller refuses to fill one out. What happens next? The buyer’s Realtor calls Florida Realtors Legal Hotline to find out what they can – and cannot – demand.

ORLANDO, Fla. – Based on what we hear on Florida Realtors Legal Hotline, most residential sellers are content to complete the Florida Realtors Seller’s Property Disclosure – Residential form (SPDR), or its condominium counterpart, when they enter into a listing agreement. However, every now and then a seller balks at the idea of completing this form, prompting a member to ask what Florida law requires regarding disclosures.

Although sellers are not required to complete this specific SPDR disclosure form, a residential seller does have to comply with the rule established in Johnson v. Davis. In that case, 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.”

These material facts are sometimes referred to as latent defects. This disclosure can be made in writing or verbally, although Florida Realtors’ attorneys recommend it be made in writing.

If you’re on the listing side of the conversation, can you force your seller to complete a seller’s disclosure, SPDR or otherwise? No, not unless you add that requirement to your specific listing agreement.

That said, the Florida Realtors Exclusive Right of Sale listing agreement places three significant obligations on the seller. The first is that seller must “Make all legally required disclosures.” This is a sweeping obligation that includes complying with any federal, local, or contractual disclosure requirements, in addition to the general rule from Johnson v. Davis. The listing agreement also obligates sellers to certify and represent that they have written in the listing agreement all “material facts (local government building code violations, unobservable defects, etc.).” The final obligation is to “immediately inform Broker of any material facts that arise after signing this Agreement.”

The SPDR form contains safeguards to ensure the seller completes the form, not the associate or broker. As a reminder to all parties, the first line of the SPDR provides “Notice to Licensee and Seller: Only the Seller should fill out this form.”

As a related issue, some brokerage companies may require that certain documents (like a seller’s property disclosure) be maintained in a file, so associates should always ensure they understand and comply with any specific requirements their company may have.

Can a buyer’s representative force the seller or listing agent to provide a seller’s disclosure? No. They are welcome to ask but will occasionally encounter a seller who is unwilling to complete one.

From a buyer’s perspective, it’s always a good idea to conduct thorough due diligence. Without the aid of a seller’s disclosure, a buyer may want to investigate the property more thoroughly during the inspection period.

Joel Maxson is Associate General Counsel for Florida Realtors
Note: Advice deemed accurate on date of publication

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