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Florida Asbestos Disclosure

What is Asbestos Disclosure in Florida

Asbestos refers to a group of naturally occurring minerals that belong to serpentine and amphibole families. After it was discovered in the 1800s, it became a popular material for building ships, constructing buildings, and manufacturing vehicle brake pads. Equally, it is used in various industries where fire resistance is essential. One of the critical characteristics of asbestos underlying its usefulness is that it can strengthen other materials. However, asbestos is responsible for various debilitating fatal illnesses, including mesothelioma, a rare and destructive cancer affecting the cell wall of internal organs, and asbestosis, a progressive lung disease. As a result of this, the state of Florida established Florida mesothelioma and asbestos laws to regulate its use. Despite asbestos health risks, the material remains a significant part of old buildings and old factories. Asbestos can still be found in specific places that can cause harm to the environment and people.

Across the United States, the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) regulate the use of asbestos. In Florida, the Department of Environmental Protection (DEP) oversees the regulations governing asbestos and asbestos-containing materials. Also, the DEP administers a program governing asbestos removal. This program mandates that an individual gives prior notification to the department concerning removing threshold quantities or amounts of asbestos from certain kinds of facilities. The DEP considers a facility as any commercial, public, institutional, industrial, or residential structure, installation or building, ship, and active or inactive waste disposal site.

The Florida Administrative Code Chapter 62-257 details the Asbestos Regulation Program further. Interested members of the public may access the website of the Department of Environmental Protection, Division of Air Resource Management for notice of demolition or asbestos renovation, asbestos letters, determinations, and clarification.

Florida Asbestos Disclosure Laws

In Florida, state law requires real estate owners and sellers to make certain disclosures about the history and condition of their property to a prospective buyer. Essentially, a seller must know and disclose to the buyer, facts and information that may impact the property's value. Any seller who fails to make this disclosure will face legal liability. For instance, a disclosure about radon gas, a naturally occurring gas in Florida, must be provided during or before the time of execution of a contract. This contract can entail purchasing, selling or renting any particular building (Florida Statutes 404.056 (5)). Also, the law provides that if a seller is selling coastal property, such seller must disclose the possibility of erosion, the possibility of the property to be subjected to regulations concerning the construction, rigid coastal protection structures, beach nourishment, and the protection of marine turtles (Florida Statutes 161.57). Individuals should note that the law does not require a radon gas disclosure for transactions concerning unimproved property like vacant land. Additionally, the law provides that if the said property is within a community that the homeowner's association governs, the association must disclose to the buyers of compulsory membership, payment of monthly or quarterly fees, and necessary assessment, alongside the details of the association and its rules (Florida Statutes 720.401).

The disclosure law further specifies that if a home has a pending code enforcement action against it, the seller should do the following:

  1. Disclose the presence and the nature of the proceeding to the buyer in writing.
  2. Hand over to the buyer a copy of pleadings, notices, and other materials regarding the code enforcement proceeding that the transferor received.
  3. Disclose in writing to the buyer that the new owner will be responsible for compliance with the applicable code and orders issued in the code enforcement proceeding.
  4. File a notice with the code enforcement official of the transfer of the said property, and it must contain the address and identity of the new owner. Individuals must have a copy of the disclosures within five days after the date of the transfer.

Notably, if a seller fails to make these disclosures before the sale of a property, the buyer will charge such seller for a rebuttable presumption of fraud (Florida Statues 125.69 (4) and 162.06 (5)).

Do You Have to Disclose Asbestos When Selling a House in Florida?

Yes. When selling a house in Florida, the seller must disclose specific information, especially about facts that can affect the property's value. One significant example of what sellers should disclose is environmental hazards such as asbestos, mold, and lead. Equally, a seller should disclose roof defects, past or present water leaks, problems with wiring, insect infestation such as termites, issues with air conditioning, and the heating system.

Does Asbestos Affect a Property's Value in Florida?

Yes. The presence of asbestos can affect the value of a property. However, the extent to which asbestos will affect the price of a property depends on other factors such as the amount of asbestos present, the asbestos location, and its state. These three factors can necessitate the adjustment of property prices to reflect the cost of what the sellers will do regarding the asbestos present.

How to Disclose Asbestos on a Property

Disclosure concerning property sales in Florida is a fundamental issue. If the seller refuses to do the needful, such a seller will face legal liability. Although a seller can do a disclosure verbally because no law in Florida requires disclosure to be in writing, a seller needs to put the disclosure in writing to avoid debates about it in the future.

The Florida association of realtors provides a standard form to help sellers make necessary disclosures. The features covered on the standard Florida disclosure form include:

  • Any potential or actual legal claims, complaints, or court proceedings that can affect the said property.
  • Availability of any disputes regarding the property's boundaries.
  • Issues with sinkholes either in the past or presently.
  • Availability of any environmental hazards such as asbestos, mold, lead, and defective drywall.
  • Problems with structural and other vital components of the home such as plumbing, electrical wiring, roof, and major appliances.
  • Presence of any infestations or damage due to termites and fungi (wood-destroying organisms).

With this disclosure form, it is easy to disclose asbestos and other essential facts about a property in Florida.

Florida Asbestos Disclosure Form

A Florida asbestos disclosure form is a document that the seller uses to disclose vital information under the law to a potential buyer of a property. This form is otherwise known as the seller's real property disclosure statement, and it is endorsed by the Florida Association of Realtors.

The form carries the seller's name and provision to indicate whether the seller occupied the property before the sale. The form also has information on the period the seller purchased the property and information on whether the property is currently leased or not. If the property is currently leased, the seller must input the date of termination of the lease on the form. The form should feature the address of the property and the legal description of the property.

In addition, the form carries a notice to both the buyer and the seller. This part of the form presents the content of the Florida State Disclosure Act. Information on what the disclosure act should achieve concerning property sales in Florida is also featured.

Summarily, the form is five-page long with 17 sub-headings, including claims and assessments, deed/homeowners' association restrictions, property-related items, the land, the environment, zoning, flood, structure-related items, roof-related items, plumbing-related items, pools or hot tubs or spas, major appliances, electrical system, heating, and air conditioning, other equipment, and other matters. The form raised cogent issues under each sub-heading, guiding the seller to disclose everything concerning the property as prescribed in the Florida Disclosure Law. Items under each subheading vary depending on what the seller is required to disclose under it.

After filling each subheading, there are sections for both the seller and buyer to acknowledge, sign twice and write the recent date.

Can You Sue for not Disclosing Asbestos on a Property in Florida?

Yes. A buyer can sue a seller or an estate agent in Florida for not disclosing asbestos on a property. According to the Florida Disclosure Act, an individual who wants to sell a property should reveal environmental hazards such as mold and asbestos to buyers before the sale. However, the buyer must get answers to specific questions before such a buyer can take any legal action. The buyer needs to know or confirm whether the seller knew the problem before selling the property. This is crucial because sellers are only expected to disclose what they know about the property. To establish a seller's possible cover-up of damage, the buyer can look for new paint, new beams, or drywall in a specific part of the building.

To further establish a seller's cover-up, the buyer can investigate the contact of contractors that have worked on the building in the past few months before the transfer of ownership. Interaction with these contractors can yield evidence of concealment by the seller. If there is evidence that the seller failed to disclose the problem, the seller will be legally liable to pay damages.

How to Sue a Seller for not Disclosing Asbestos on a Property in Florida

It is essential to establish a solid case against a seller before filing a case against the seller in Florida. The buyer must confirm the following points to develop a case:

  1. The defect was there before the seller sold the property. Individuals should note that buyers cannot present problems due to aging or which started after the purchase of the building as solid bases for a lawsuit against a seller.
  2. The defect was not visible so that buyers could detect it before buying.
  3. Someone lied about the problem, or no one informed the seller.
  4. The seller based their decision to buy on the lies or non-disclosures.
  5. The buyer incurred monetary damages as a result of the problem.
  6. The seller was within a statute of limitation – within any appropriate deadlines.

After establishing a case against the seller, the buyer can decide whether to file the lawsuit at the small claims court (if the damages fall within a specific limit) or file at the state court. An individual who chooses to file in small claims court will escape the expensive administrative challenges of a regular lawsuit. However, if the damage an individual is demanding is beyond the limit captured in small claims court, the available option is the state court. In small claims court, an individual can represent themselves, but in most cases, legal representation is required for a state court.

In filing a case at the small claims court, the buyer (plaintiff) will have to file a statement of a claim form. This form is available at the clerk's office. After submitting a signed form, the court will fix a pre-trial conference date. If written documentation supports the claim, the buyer must attach a copy. The statement of claim form can be filed in person or via mail. Then, the court will serve the seller a summons or notice to appear for a pre-trial conference.

During the pre-trial conference, the court will determine if there is a cause for action. If the court discovers a cause for action, the case will be referred to a trained mediator to negotiate a settlement before the case will go to trial. If the mediator can strike a compromise, the judge will receive the case for approval. If otherwise, the court will fix a trial date. However, both parties must appear for trial with witnesses and all documentation at the appointed date. It should be noted that there is a filing fee for small claims depending on the amount of the claim requested.

On the other hand, a buyer can file a case against a seller for non-disclosure of asbestos in the state courts in Florida. The buyer will have to follow these steps to file a case.

  1. Review Florida rules of court and Florida Statutes: it is crucial for any individual who wants to file a case against a seller concerning asbestos-related issues in Florida to review the laws on asbestos disclosure and other related matters to be sure of a case against the seller or the estate agent. An attorney can provide more enlightenment on the law and the buyer's position. If the assessment is good and the individual can establish a case, then such an individual can proceed to file the case.
  2. File the case in the county where it will be heard: an individual will need to file a complaint, petition, or related documents and submit the signed form to the clerk's office through mail or in person to start a case officially. Also, the individual will scan and submit this form electronically through eFiling. An individual can consult the clerk for information on how to serve the seller or the estate agent the case summons.

After filing the case, the court will fix a date for an initial hearing where the judge will receive the information filed with the clerk, and the persons will give reasons for being in court. Statutorily, a case will be referred to a mediator to see if the buyers and sellers can settle the case. If this is impossible, the case will proceed to a hearing. After hearing the submissions of both parties, the judge makes a decision based on the evidence available.