The seller did not disclose a defect
You have to prove three things: the seller knew, it materially affects value, and you could not readily observe it. The duty comes from Johnson v. Davis (Fla. 1985)†, and an as-is contract does not defeat it — as-is limits the obligation to repair, not the obligation to tell the truth.
Buyers usually arrive certain that the seller must have known. Certainty is not evidence. What decides these cases is a paper trail — a prior repair invoice, an insurance claim, a permit, an earlier inspection report, an email, a contractor who remembers the conversation. Before spending anything on lawyers, work out what would actually prove knowledge.
The three-part test, and where claims fail
| Element | What it means | Why claims fail here |
|---|---|---|
| The seller knew | Actual knowledge, not what they should have found out | No evidence they knew — suspicion is not proof |
| Material to value | A reasonable buyer’s price or decision would change | The defect is real but minor, or cosmetic |
| Not readily observable | You could not have seen it on a normal inspection | It was visible, or your own inspector flagged it and you proceeded |
That third column is worth sitting with. A defect noted in your own inspection report is, by definition, observable — and proceeding after being told about it is very hard to recover from. The strongest claims involve things nobody could have seen: what is inside a wall, under a slab, or in a history only the seller had.
What evidence actually proves knowledge
- Prior insurance claims on the property. A paid claim for water damage is documentary proof the owner knew about water damage. This is frequently the strongest single item.
- Permits and permit history. Public records. A permit for structural repair, or an open permit for work never finished, establishes both the problem and their awareness of it.
- Repair invoices and contractor records. Contractors keep records, and many will confirm work they did if asked.
- An earlier inspection report. If a previous sale fell through after an inspection, that report exists and the seller has seen it.
- Neighbours. Underrated. Long-standing neighbours often remember the flooding, the crew that came out, or the year the roof was patched.
- Written answers the seller gave. A false answer to a direct written question is far more damaging to a seller than silence, which is exactly why asking in writing before closing is worth doing.
What to do, in order
- Document the defect now, before any repair. Photographs with dates, and a written professional assessment of cause and cost. Repairing first destroys the evidence and the claim with it.
- Get a cause opinion, not just a repair quote. Whether the damage predates your purchase is usually the decisive technical question.
- Pull the public record — permits, prior claims where obtainable, and the property history.
- Check your own file. The inspection report, the disclosure forms, and every written question and answer. What you were told, and when, frames everything.
- Take advice before you write to the seller. An angry first letter often reveals your evidence and hardens their position at the same time.
Litigation is slow and expensive, and a modest defect is frequently cheaper to fix than to fight over. That is an uncomfortable thing to be told and it is usually true. The calculation changes when the number is large — structural work, a full repipe, remediation — or when the evidence of knowledge is unusually clean.
Where the flood disclosure changes things
Flood is now on a statutory footing rather than resting on the general common-law duty. Since 1 October 2024† a separate written flood disclosure is required at or before contract, and from 1 October 2025† it must also cover flood damage during the seller’s own ownership, with the earlier limitation to federal assistance removed.
That matters evidentially. A specific written form asking a specific question is much easier to point at than an argument about what a general duty required. If you were given an outdated form, or none at all, that is worth establishing early.
Who else might be responsible
- Your inspector, if the defect was within the scope of the inspection and reasonably discoverable. Note that inspection contracts usually limit liability, often to the fee.
- The seller’s agent, where they knew of the defect. Licensed agents have their own disclosure obligations and are not simply passive conduits.
- A contractor, where defective work was concealed rather than merely old.
- Nobody, which is the honest answer in a real share of cases. Old houses have problems that nobody knew about, and that is a cost of ownership rather than a wrong.
Related
Common questions
Can I sue a seller for not disclosing a defect in Florida?
Potentially. You must show the seller knew of the defect, that it materially affects value, and that you could not readily observe it. The duty comes from Johnson v. Davis and survives an as-is contract.
Does an as-is contract protect a seller who hid something?
No. As-is means the seller is not agreeing to make repairs. It does not remove the duty to disclose known, material, non-obvious defects.
How do I prove the seller knew about the problem?
Prior insurance claims, permit records, repair invoices, an earlier inspection report from a failed sale, neighbours’ recollections, and any false written answer the seller gave to a direct question. Suspicion alone does not carry a claim.
What if my inspector missed it?
Your inspector may be responsible if the defect was within scope and reasonably discoverable, though inspection contracts commonly limit liability, sometimes to the fee paid. It is a separate route from the claim against the seller.
Should I repair the defect before making a claim?
Not before documenting it. Photographs with dates and a written professional opinion on cause come first — repairing destroys the evidence that the damage predated your purchase.
The general duty is common law from Johnson v. Davis, 480 So. 2d 625 (Fla. 1985); flood disclosure is statutory under §689.302. Outcomes turn heavily on specific facts and on your contract. This is general information, not legal advice — take advice before acting.