Here are questions on foreclosure issues with answers provided by the legal department of Florida Realtors.
Q: An agent represents a buyer who wants to buy vacant land and develop it. The land has gopher tortoises on it. Are there any special rules regarding gopher tortoises?
A: Yes. In Florida, the gopher tortoise is classified as a threatened species, and the gopher and its burrow are protected by state law. It’s illegal to harm, capture or transport gopher tortoises or damage their burrows, except as authorized by specific Florida Fish and Wildlife Conservation Commission permit. Property owners may need to capture and relocate all gopher tortoises before development-related activities can begin. There’s more information about gopher tortoises and the permit process on the FWC’s Web site: myfwc.com.
Q: An agent represents a seller who learned after buying the property that it was the site of a murder-suicide years ago. Must this event be disclosed to a prospective buyer even though this murder-suicide did not occur during the seller’s ownership of the property?
A: No. Under Section 689.25(1)(b), Florida Statutes, a homicide, suicide, or death that occurred on the property is not a material fact that must be disclosed in a real estate transaction.
Q: Is a new home seller required to disclose insulation information in the contract?
A: Yes. Section 16, CFR 460.16, explains insulation disclosure requirements for new home contracts.
The regulation reads as follows: “If you are a new home seller, you must put the following information in every sales contract: The type, thickness and R-value of the insulation that will be installed in each part of the house.
There is an exception to this rule. If the buyer signs a sales contract before you know what type of insulation will be installed or if there is a change in the contract, you can give the buyer a receipt stating this information as soon as you find out.”
Q: Is it true that pursuant to the Homeowners’ Association Disclosure law (Section 720.401, Florida Statutes), the seller must provide the buyer a current copy of the HOA documents?
A: No. The buyer could, however, include a provision in his/her offer requiring the seller to provide the documents to the buyer.
Q: Regarding the property tax disclosure law that became effective January 1, 2005. Is this disclosure required for all real estate transactions?
A: No. The Property Tax Disclosure Summary required by Section 689.261, Florida Statutes, is required only in the sale of residential property and is included in both the FAR and Florida Realtors/Florida Bar contract forms.
Q: An agent represents a buyer who’s interested in making an offer to a for sale by owner (FSBO) who’s selling the home “as is.” The agent asked the seller to disclose any latent defects in the property, and he said he didn’t have to because the home is being sold “as is.” Does the seller have an obligation to disclose known latent defects if he is selling the home “as is?”
A: Yes. In Johnson vs. Davis, 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.” The disclosure can be made in writing or verbally. In addition, in Rayner vs. Wise Realty Co. of Tallahassee, the First District Court of Appeal provided that this same disclosure requirement applies to residential properties that are being sold as is.
Q: Does the Section 404.056(5), Florida Statutes, radon gas disclosure have to be given to a buyer where the transaction involves the sale of vacant land?
A: No. The radon gas disclosure is not required for transactions involving unimproved properties.
Q: Does the radon gas disclosure apply to residential leases?
A: Yes. Section 404.056(5), Florida Statutes, requires the disclosure be provided prior to or at the time of execution of a rental agreement for any building. However, the statute states it does not apply to residential transient occupancy in a public lodging facility for 45 days or less.
Q: An investor who is selling a home and tells his agent that since he’s never lived in the property, he isn’t required to provide the buyer with a seller property disclosure statement. Is this true?
A: Yes and no. A seller isn’t required to fill out a seller’s disclosure statement regardless of whether the seller occupied the property or not.
However, pursuant to the Florida Supreme Court case Johnson vs. Davis, a seller is required to disclose known facts that materially affect the value of the property that are not known and readily observable to the buyer. That disclosure requirement exists whether or not the seller occupied the property.
Q: An agent is representing a seller of vacant land and wants to use the FAR Seller Real Property Disclosure Statement, but much of the form doesn’t apply to vacant land. Is there a better form to use?
A: Florida Realtors has a Vacant Land Disclosure Statement specifically designed for the disclosure of facts related to vacant land. The form may be downloaded from Form Simplicity at www.floridarealtors.org.
Q: The listing agent for bank-owned property wants the bank to fill out a Seller’s Real Property Disclosure Statement; however, a bank representative says this disclosure isn’t required by law since the bank never occupied the home. Is that true?
A: It’s true that the bank isn’t required to fill out a Seller’s Real Property Disclosure Statement or any similar form because there is no legal requirement for a seller to give a buyer a written seller property disclosure statement.
However, a seller of a residential property, whether a bank or an individual and regardless of whether the seller occupied the property, is obligated under Florida law to disclose to a buyer all known facts that materially affect the value of the property which are not readily observable and are not known to the buyer. The disclosure obligation can be fulfilled via either a verbal or written disclosure.
Q: Is the seller of a home that has a pending code enforcement action against it required to disclose this fact to a potential buyer?
A: Yes. Pursuant to Sections 125.69 (4)(d) and 162.06 (5), Florida Statutes, the transferor (i.e., the seller) must a) disclose, in writing, the existence and the nature of the proceeding to the prospective transferee; b) deliver to the prospective transferee a copy of the pleadings, notices and other materials relating to the code enforcement proceeding received by the transferor; c) disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding; and d) file a notice with the code enforcement official of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within five days after the date of the transfer.