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Florida Flood Disclosure in the Sale of Real Property

March 22, 2024
Conn Cole

During past Florida legislative sessions, various “flood disclosure” bills have been presented for consideration but have never survived to become law. In some cases, the bills stall in committee hearings and don’t make it to the floor for a vote, while others have made it to the floor but haven’t secured enough votes to pass on to the Governor for signature.  

Florida law requires that a seller of residential real property make certain disclosures to a potential buyer. However, Florida courts have been split on whether a tendency to flood must be disclosed because Florida law does not require any type of flood disclosure.

In Nelson v. Wiggs, the buyers of a home in the East Everglades area of Miami-Dade County purchased a home during the dry season, and the seller did not disclose to the buyers that the area where the house was located flooded annually during the rainy season. The flooding was so severe that snakes and alligators gathered at the property to escape the waters. The Court dismissed the case against the seller, finding that seasonal flooding of the neighborhood was common knowledge, and this information was readily available to the buyers had they exercised diligent attention (Nelson v. Wiggs, 699 So. 2d 258 (Fla. 3rd DCA 1997)).

In contrast, in Newbern v. Mansbach, the buyers purchased a home in Destin, Florida, and the seller did not disclose that the property was located in the Coastal Barrier Resource Area (CBRA), making the home ineligible for flood insurance. The Court determined that laypersons need help understanding CBRA designations and that prospective buyers may need assistance interpreting public records' contents. Thus, the sellers should have disclosed such information to the buyers (Newbern v. Mansbach, 777 So.2d 1044 (Fla. 1st DCA 2001)).

**Under the Coastal Barrier Improvement Act of 1990, Congress mandated the exclusion of CBRAs from the Federal Flood Insurance Program. See 16 U.S.C. ss. 3501, 3504.**

As the former Florida NFIP State Coordinator, I often heard from homeowners asking for assistance because the seller or real estate agent did not inform them that the home was in a special flood hazard area (aka flood zone), required flood insurance, or had been damaged by a previous flood event. Unfortunately, my office could do nothing because Florida historically followed the doctrine of “buyer beware.” Under this doctrine, a seller of real property has no duty to disclose any property defects, and the buyer must conduct diligent inspections or inquiries for property defects on their own. Essentially, the buyer purchases real property “as-is.”

During the 2024 Florida legislative session, the legislature passed CS/CS/HB 1049 Flood Disclosure in the Sale of Real Property. The bill requires sellers of residential real property to provide a completed flood disclosure form to the purchaser before a sales contract is executed. The bill requires the following of the flood disclosure:

- The form's title must be “FLOOD DISCLOSURE.”

- A flood insurance disclaimer must be provided stating: “Flood Insurance: Homeowners' insurance policies do not include coverage for damage resulting from floods. Buyer is encouraged to discuss the need to purchase separate flood insurance coverage with Buyer's insurance agent.”

- The seller must state whether they have filed a claim with an insurance provider relating to flood damage on the property, including, but not limited to, a claim with the National Flood Insurance Program.

- The seller must state whether they have received federal assistance for flood damage to the property, including, but not limited to, assistance from the Federal Emergency Management Agency.

The bill defines flooding as a general or temporary condition of partial or complete inundation of the property caused by any of the following:

- The overflow of inland or tidal waters.

- The unusual and rapid accumulation of runoff or surface waters from any established water source, such as a river, stream, or drainage ditch.

- Sustained periods of standing water resulting from rainfall.

This bill's passage is considered a significant win in Florida’s floodplain management community. A majority of local floodplain administrators and the Florida Floodplain Managers Association supported the bill. Florida now joins 32 other states requiring some form of flood disclosure to sell real property as it becomes more flood-damage resilient. Potential buyers, both in-state and out-of-state, will be informed of flooding risks before purchasing a home and may avoid flood-related costs.

The effective date of this bill is October 1, 2024, unless vetoed by the Governor.

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