The Legal Duty to Disclose — And Why It Applies Even to "As-Is" Sales
If you are selling a home in Daytona Beach, Port Orange, Ormond Beach, New Smyrna Beach, Palm Coast, or anywhere in Volusia County, you carry a legal obligation that many sellers dangerously underestimate: the duty to disclose. Florida is not a caveat emptor state. You cannot simply hand a buyer the keys, wish them luck, and walk away from problems you knew about.
That rule has been settled law since the Florida Supreme Court's landmark decision in Johnson v. Davis, 480 So. 2d 625 (Fla. 1985). In that case, the Court held that sellers of residential real estate must affirmatively disclose all known facts that materially affect the property's value and are not readily observable or known to the buyer. Forty-one years later, that ruling remains the cornerstone of every residential transaction in this state — and the Legislature has steadily added to it.
Here is what the law currently requires of Florida sellers, including the most significant statutory update to hit the market in recent memory.
The Three-Part Test: When Are You Required to Disclose?
Before walking through specific disclosure categories, it helps to understand the underlying standard. Under Johnson v. Davis and its progeny, a seller's disclosure obligation is triggered when three conditions are met simultaneously:
- A fact exists that materially affects the property's value or desirability;
- The seller knows about that fact; and
- The buyer does not know — and cannot readily observe — that fact.
That last element matters. Disclosure is not required for conditions that are plainly visible during an ordinary walkthrough. But it is absolutely required for anything hidden: inside walls, beneath slabs, underground, or buried in your claims history.
One point sellers routinely get wrong: an "as-is" contract does not waive your disclosure obligation. Selling as-is means the buyer accepts the property in its current condition and is not entitled to demand repairs. It does not mean you are relieved of disclosing what you know. That confusion costs sellers dearly in litigation every year.
The New Flood Disclosure Form — Florida's Biggest Change in Years
If you are selling property anywhere near the Intracoastal, the Halifax River, Spruce Creek, or within a FEMA Special Flood Hazard Area — pay close attention. The most consequential legislative development for Florida sellers in recent years is now fully in effect.
In 2024, the Florida Legislature enacted Section 689.302, Florida Statutes, creating the state's first mandatory flood disclosure form. Then in 2025, Senate Bill 948 expanded the requirements significantly, with an effective date of October 1, 2025. That expansion is the law governing your sale today.
Under current law, sellers must complete the Flood Disclosure Form (FD-2) and deliver it to the buyer at or before the time the sales contract is executed. The form requires you to affirmatively state:
- Whether you are aware of any flooding that damaged the property during your ownership — not just damage that reached the level of an insurance claim, but any flooding that caused damage;
- Whether you filed a flood-related insurance claim during your ownership; and
- Whether you received FEMA assistance or aid from any other source related to flood damage.
The statute defines "flooding" broadly. It encompasses the overflow of inland or tidal waters, the unusual and rapid accumulation of surface runoff from any established water source — including rivers, streams, and drainage ditches — and sustained periods of standing water resulting from rainfall. If your property flooded during a named storm, a king tide event, or even a prolonged rainy season, that history belongs on the FD-2 form.
This is not an abstract concern for Volusia County sellers. Daytona Beach and coastal communities throughout this region carry meaningful hurricane and storm surge exposure. Buyers know it. Their lenders know it. Their attorneys know it. Your flood history will be scrutinized, and concealing it exposes you to rescission of the contract, damages, and potential fraud liability long after closing.
Other Mandatory Disclosures Under Florida Law
Beyond flood history, Florida statutes require sellers to address a range of additional conditions. The following represent the most frequently implicated in Volusia County transactions:
- Radon Gas: Under Section 404.056(5), Florida Statutes, sellers must provide written disclosure that radon gas occurs naturally in Florida and may be present at elevated levels in buildings. A specific statutory-language disclosure is required.
- Homeowners Association Obligations: Under Section 720.401, Florida Statutes, sellers in deed-restricted communities must deliver a disclosure summary to the buyer before or at contract execution, notifying them that the property is subject to HOA governance, assessments, and restrictions. Buyers in certain circumstances may have a right of rescission if this disclosure is not timely made.
- Property Tax Disclosure: Under Section 689.261, Florida Statutes, sellers must inform buyers that property taxes may be substantially re-assessed following the sale, and that the buyer's tax obligation may differ materially from what the seller currently pays. This matters in Volusia County, where homesteaded sellers often carry Save Our Homes-capped assessed values far below market.
- Lead-Based Paint: Federal law under 42 U.S.C. § 4852d requires sellers of homes built before 1978 to provide buyers with a federally-approved lead-based paint disclosure form and, where available, any known records of lead-based paint hazards. Older DeLand, Daytona Beach, and Ormond Beach housing stock frequently triggers this requirement.
- Sinkholes and Geological Activity: Florida's sinkhole exposure is well-documented, and known sinkhole activity on or near a property is a classic material fact under Johnson v. Davis. Any prior sinkhole claims, remediation, or geological reports in your possession should be disclosed and provided to the buyer.
- Chinese Drywall: If your home was built or renovated between approximately 2001 and 2009 and you are aware of defective Chinese drywall, that is a material fact requiring disclosure. The corrosive properties of affected drywall affect structural components and HVAC systems and remain a litigation issue in Florida courts.
What Happens When a Seller Fails to Disclose?
The consequences are serious. A buyer who discovers a concealed material defect after closing may pursue a claim for fraudulent misrepresentation, negligent misrepresentation, or violation of the Johnson v. Davis duty. Available remedies include rescission of the transaction, compensatory damages, and in cases involving intentional concealment, potentially punitive damages. Florida courts do not look kindly on sellers who had actual knowledge of a problem and stayed silent.
Sellers sometimes believe that burying a disclosure in an "as-is" addendum or simply not volunteering information will protect them. It will not. If you know about it and the buyer couldn't see it, you had a duty to say so.
How to Protect Yourself: A Practical Checklist Before You List
- Gather all prior insurance claims — flood, wind, homeowners — for the property;
- Pull any FEMA flood assistance records from your period of ownership;
- Complete the FD-2 Flood Disclosure form accurately and in full before contract execution;
- Identify the year your home was built and confirm whether lead-based paint disclosure is required;
- Check whether your community has an HOA and confirm the Section 720.401 disclosure summary is current;
- Compile any inspection reports, repair records, or remediation documents — these should be disclosed, not concealed;
- Consult with a licensed Florida real estate attorney before listing if you have any doubt about what to disclose.
Work With a Broker Who Is Also a Florida Attorney
Disclosure law sits at the intersection of real estate practice and legal liability. Most brokers can hand you a checklist. Very few can give you the legal analysis behind it.
As a Florida-licensed attorney and broker with the Certified International Property Specialist (CIPS) designation, I work with sellers throughout the Daytona Beach area — from Flagler Beach to DeLand, from Ormond Beach to New Smyrna Beach — to structure transactions that protect them at every stage, including disclosure. Getting disclosure right before you list is not just good practice. It is the foundation of a clean closing and a legally defensible sale.
Ready to sell? Contact Arthur Simpson, Esq., CIPS at Realty Pros Assured through arthursimpson.com to schedule a seller consultation. Know your obligations. Protect your equity. Close with confidence.