images-2You bought a house.  Congratulations! You are all excited.  You move in, get settled, and then the dreadful happens.  You discover that the new house you bought contains water intrusion or other significant construction defects.   You begin to think about the money pit you just bought; hilarious movie, by the way, so I digress with a funny scene from the movie:








Back to the issue.  What do you do with the perceived money pit that you know or anticipate will cost you substantial sums to repair.  First, assuming this was not new construction, you pull up the seller’s disclosure to see whether the seller (former owner) disclosed any of the water intrusion or construction defects.  The seller did not.  You believe the seller knew or reasonably should have known of these construction defects. How could they not?  So you consult a lawyer (always a good first step) to explore what is known as the Johnson v. Davis line of cases that stand for the proposition that a seller has a duty to disclose known defects with the house they are selling. See Johnson v. Davis, 480 So.2d 625 (Fla. 1985).


A new case, Bowman v. Barker, 40 Fla. L. Weekly D2091b (Fla. 1st DCA 2015), bolsters a buyer’s claims against a seller for not disclosing known defects in their house.  In this case, the sellers apparently purchased a dilapidated house (cheaply) and renovated the house with the intent on flipping the house to another buyer.  The house was sold.  Defects were not disclosed.  After the sale, the buyer discovered numerous construction defects.  The buyer sued the seller, amongst others, for failing to disclose these defects that the buyer contended the seller knew about or should have reasonably known about.


The First District explained:


The duty to disclose known defects under Johnson v. Daviscontinues to exist for a home sold “as is.” The sellers do not dispute this principle. Despite selling this house “as is,” the sellers had a duty to disclose what they knew about its condition, and they undertook to make disclosures to Appellant [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.


This means the buyer is able to let the trier of fact (jury or judge) determine the issue of whether the seller knew of the construction defects but failed to disclose them to the buyer.  This is a good case for a buyer since it supports the argument that these are issues to be determined by the trier of fact, putting pressure on the seller based on how the trier of facts may interpret the facts knowing the house they just sold contains numerous construction defects. For instance, in this case, the First District noted: “This evidence raises a question of fact about the appellees’ [seller’s] knowledge, as well as questions about their credibility and the plausibility of their denying knowledge of the property’s substantial defects and what repairs it needed.”


Consult an attorney if you purchase a house and discover construction defects, especially if you believe you just bought a money pit.  An attorney can assist you with potential recourse under the law.  


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.