Flood Disclosures: What Do You Have to Say to a Prospective Buyer?

Today, we are featuring a guest post from Erin Deady, a licensed Florida attorney, about Florida’s flood disclosure rules.

Flooding Disclosure

Tidal flooding is a concern in Florida, which makes sense considering how much coast there is. As a Florida real estate agent, this has a direct impact on how you work. You have to understand and abide by the laws regarding flood disclosure.

During the “King Tide” season, the condition occurs when the orbits and alignment of the Earth, moon, and sun combine to produce the greatest tidal effects of the year.  More extreme rainfall conditions can overwhelm older drainage systems.

These conditions may not be “readily observable” all the time.  They may not be consistent year to year.  But, the conditions can be for prolonged durations, such as recently in Key Largo. Finally, these conditions may be exacerbated by winds, an active tropical storm season or just a 1 in 100-year storm event that is now happening every 2 years.

Do you know how to handle these changing conditions as you help clients in Florida? Here’s what you need to know!

What Do You Have to Disclose Related to Flooding?

Obligations of Realtors® vary across states based on state law or other influences.  It is important to look beyond the standard real estate contract to understand disclosures related to flooding, which are not necessarily just limited to whether there has been a flood insurance claim filed.

Because of the different types of flooding events, their duration, causes, and exhibited characteristics, there may be different types of flood information that can or should be disclosed.  This is more confusing if the flooding is on a road and not on the property itself.

Because knowledge is more widespread about these flooding issues, there may be a benefit to disclosing more information about known flooding conditions.

An Example:  Florida’s Flood Disclosure Standard

In a Florida case, Johnson vs. Davis, the Florida Supreme Court ruled “where the seller of a home knows the 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”.

It’s unclear how much road flooding that limits access to a property affects its value or if such a disclosure standard would apply only to flooding on the actual property.  The cause or origin of the flood as well as whether or not there was damage are not specified.

Can There be Local Flood Disclosure Requirements?

Yes, Leon County, Florida (non-coastal and land-locked), has a local ordinance specifically on flood-related disclosures (Leon County Code of Laws, Section 12-8(b)).  It states that a seller cannot knowingly fail to disclose facts when a property has experienced flooding or is flood-prone when such flood conditions are not readily observable and are not known to the buyer.

That failure to disclose creates a rebuttable presumption that the seller has failed to disclose facts that materially affect the value and shall entitle the purchaser to seek to recover from the seller. So, while the legal standard set out in the case law is broader, the local ordinance specifically requires flood-related facts to be disclosed.

What Should I Disclose?

This is fact-dependent based upon state law and/or local ordinance.  Flood conditions can present an untested legal question and no one wants to be the “test case.”

But Realtors® cannot simply keep conducting business as usual.  Learn what the legal standard is, it may differ from what is on the standard contract.  Also learn if there is a local flood-specific disclosure requirement.

It is becoming more important to understand the full extent of flood disclosure requirements.  The new reality of climate-related flooding events may necessitate new thinking on what to disclosure.

Are you ready to get more business in Florida – or any other state? Take a look at our real estate marketing materials today and let us help you build your brand.



Erin L. Deady, P.A., is a full service legal and consulting firm. Firm President, Erin Deady, is a licensed attorney in Florida, a certified land planner by the American Institute of Certified Planners (AICP) and a LEED AP. Ms. Deady’s practice is primarily focused on public sector government representation but also includes numerous private sector and agricultural clients. Ms. Deady’s practice includes environmental restoration initiatives, water, energy, climate, local government, administrative law, real estate and land use issues.