At Berlin Patten Ebling, we are constantly asked “do I need to disclose that?” when it comes to the sale of residential property.  Our answer to that question is always an unequivocal yes.  When in doubt, DISCLOSE!  While we have touched on this topic before, we thought it was important to revisit the topic with so many distressed homes being sold in Florida by investors and then renovated for a quick sale.

As many of you are aware, the Florida Supreme Court case of Johnson v. Davis, 480 So.2d 625 (Fla. 1985) is the seminal case regarding seller disclosure.  Without repeating the facts for the millionth time, the decision holds that sellers of residential property in Florida are obligated to disclose all facts which materially affect the value of the property.  Since Johnson v. Davis, the issues of what constitutes “knowledge” and “AS-IS” have become a constant source of contention throughout Florida courts.

Well, the recent case Bowman v. Barker, 40 Fla. L. Weekly D2091b (1st DCA 2015), provides a little clarity on the issues.  In Bowman v. Baker, the buyer filed suit against the seller alleging that the seller failed to disclose known defects in the house.  The lower court ruled in favor of the seller in granting seller’s motion for summary judgment.  The First District Court reversed the lower court’s decision and found that “despite selling the house “as is,” the “sellers” had a duty to disclose what they knew about its condition, and they undertook to make disclosures to the “buyer” about the condition of the house. The record demonstrates triable issues of fact about what that condition was, what the “sellers” knew about it, what disclosures were made, and whether those disclosures were accurate.”  Essentially, the First District Court found that the buyer had demonstrated the existence of facts and inferences that should have allowed the case to go to trial and that despite selling the house “as is,” the seller had a duty to disclose what they knew about the home’s condition.

This is great news for buyers as this decision reinforces the fact that sellers must disclose known hidden defects for properties sold in their “as in” condition.  While this can be concerning for sellers, the moral of the story is when in doubt, DISCLOSE!  With all that being said, it shouldn’t be hard to see why a detailed and accurate “Seller Disclosure” will go a long way in helping/protecting ALL parties to a transaction.

As always, we urge you to contact your local real estate attorney when buying or selling real property, especially when there is a question regarding disclosure.


Berlin Patten Ebling, PLLC

Article Authored by Will McComb, Esq.

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged. 


3700 South Tamiami Trail, Suite 200, Sarasota, FL 34239   P (941) 954-9991  F (941) 954-9992 


247 Tamiami Trail South, Suite 201, Venice, FL 34285  P (941) 955-9991  F (941) 484-9992


8130 Main Street, Suite 206, Lakewood Ranch, FL 34202   P (941) 907-9022  F (941) 907-9024

Did you find this real estate law content useful, but need actual legal counsel?

Speak to a real estate attorney!

, , ,

Attractive desperate woman asking for help in managing expenses. Cost living and bill problems

Agents are on the Hook!

  Today’s real estate market is certainly a seller’s market however, well before a seller can place the “FOR SALE” sign in the front yard, a seller has an obligation to fill out disclosure forms, intended to inform potential buyers of material property defects. If sellers fail to disclose known material defects, there can be…
Real estate agent showing the effective date of lease

Post-Closing Occupancy Agreements Part II

  Enforcement of Seller’s and Buyer’s Post-Closing Nuptials Often, a title company may provide a basic fill-in-the-blank form for a post-occupancy agreement. Sometimes, the parties write it themselves, and other times a Google search seals the deal. On the odd occasion, a buyer will close and verbally agree to allow the seller to stay on…
business people shaking hands and Give an under-the-table bribe to an attorney to help a lawyer win a court case. Bribery and Kickback Ideas Fraud and Fraud

The Big Kickback?!

  Over the past several months the Firm has received several inquiries from concerned Agents and Brokers questioning the legality of proposals they have received to join an affiliated business/joint venture arrangement for the purpose of referring settlement services to their customers. We are not at all surprised by this as we often see new…