HB 1649 2003
1	CHAMBER ACTION
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6	The Committee on Judiciary recommends the following:
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8	Committee Substitute
9	Remove the entire bill and insert:
10	A bill to be entitled
11	An act relating to sales disclosures; creating s. 475.423,
12	F.S.; specifying the transactions that are subject to the
13	requirements of the act; providing definitions; requiring
14	that certain disclosures be made by the transferor or his
15	or her agent with respect to real property located within
16	a flood hazard area, an area with severe constraints for
17	development, an area having sinkhole activity, a wellhead
18	protection area, a priority wetland zone, a habitat
19	conservation area, an airport influence area, an
20	environmental hazard site, or a radon gas zone; providing
21	that the waiver of such requirements is against public
22	policy; providing certain exceptions; specifying the form
23	to be used as the Property Identification Disclosure
24	Statement; providing requirements for identifying
25	information that accompanies the disclosure statement;
26	prohibiting the use of the disclosure statement by certain
27	entities other than the transferor, the transferor's
28	agents, and the transferee; providing requirements for
29	delivery of the required disclosure statement; providing a
30	limitation with respect to liability for errors,
31	inaccuracy, or omissions; requiring a third party that
32	provides information with respect to the disclosure
33	statement to maintain a specified amount of insurance
34	protection; providing that certain subsequent inaccuracies
35	with respect to the information disclosed are not a
36	violation of the act; requiring that disclosures be made
37	in good faith; providing that the act does not limit or
38	abridge other disclosures required by law; authorizing the
39	amendment of a disclosure; providing for delivery of
40	disclosures; providing requirements for the licensee or
41	broker acting as an agent in a transaction subject to the
42	act; specifying liability for willful or negligent
43	violation or failure to perform; providing an effective
44	date.
45
46	Be It Enacted by the Legislature of the State of Florida:
47
48	Section 1. Section 475.423, Florida Statutes, is created
49	to read:
50	475.423 Property identification disclosure statement.--
51	(1)(a) Except as provided in subsection (2), this section
52	applies to any transfer by sale, exchange, or installment land
53	sale contract of residential properties, wherein one party
54	agrees to convey title to real property to another party upon
55	the satisfaction of specified conditions set forth in the
56	contract and which does not require conveyance of title within 1
57	year after the date of formation of the contract, lease with an
58	option to purchase, any other option to purchase, ground lease
59	coupled with improvements of any real property described in
60	paragraph (b), or residential stock cooperative, improved with
61	or consisting of not less than one or more than four dwelling
62	units.
63	(b) The transferor or his or her agent is required by one
64	or more of the following to disclose the property's location
65	within an applicable zone:
66	1. A person who is either acting as an agent for a
67	transferor of real property that is located within a special
68	flood hazard area, which is any type Zone "A" or "V" as
69	designated by the Federal Emergency Management Agency, or the
70	transferor, if he or she is acting without an agent, shall
71	disclose to any prospective transferee the fact that the
72	property is located within a special flood hazard area if:
73	a. The transferor, or the transferor's agent, has actual
74	knowledge that the property is within a special flood hazard
75	area; or
76	b. Other readily available and officially adopted
77	governmental information exists regarding the flood zone.
78	2. A person who is acting as an agent for a transferor of
79	real property that is located on soils with very severe
80	constraints for development, or the transferor, if he or she is
81	acting without an agent, shall disclose to any prospective
82	transferee the fact that the property is located on soils with
83	very severe constraints for development pursuant to maps issued
84	by the United States Department of Agriculture or other readily
85	available and officially adopted governmental maps and
86	information if:
87	a. The transferor, or the transferor's agent, has actual
88	knowledge that the property is on soils with very severe
89	constraints for development; or
90	b. Other readily available and officially adopted
91	governmental information exists regarding the soils with very
92	severe constraints for development.
93	3. A person who is acting as an agent for a transferor of
94	real property that is located in an area impacted by sinkhole
95	activity, or the transferor, if he or she is acting without an
96	agent, shall disclose to any prospective transferee the fact
97	that the property is located in an area impacted by sinkhole
98	activity pursuant to readily available and officially adopted
99	governmental maps and information if:
100	a. The transferor, or the transferor's agent, has actual
101	knowledge that the property is in an area impacted by sinkhole
102	activity; or
103	b. Other readily available and officially adopted
104	governmental information exists regarding sinkhole activity.
105	4. A person who is acting as an agent for a transferor of
106	real property that is located within a quarter of a mile of a
107	wellhead protection area, or the transferor, if he or she is
108	acting without an agent, shall disclose to any prospective
109	transferee the fact that the property is located within a
110	quarter of a mile of a wellhead protection area according to
111	maps issued by the Department of Environmental Protection or a
112	water management district or other readily available and
113	officially adopted governmental maps and information if:
114	a. The transferor, or the transferor's agent, has actual
115	knowledge that the property is located within a quarter of a
116	mile of a wellhead protection area; or
117	b. Other readily available and officially adopted
118	governmental information exists regarding a wellhead protection
119	area.
120	5. A person who is acting as an agent for a transferor of
121	real property that is located in a priority wetland zone, or the
122	transferor, if he or she is acting without an agent, shall
123	disclose to any prospective transferee the fact that the
124	property is located in a priority wetland zone pursuant to maps
125	issued by the Fish and Wildlife Conservation Commission or other
126	readily available and officially adopted governmental maps and
127	information if:
128	a. The transferor, or the transferor's agent, has actual
129	knowledge that the property is located in a priority wetland
130	zone; or
131	b. Other readily available and officially adopted
132	governmental information exists regarding a priority wetland
133	zone.
134	6. A person who is acting as an agent for a transferor of
135	real property that is located in a strategic habitat
136	conservation area, or the transferor, if he or she is acting
137	without an agent, shall disclose to any prospective transferee
138	the fact that the property is located in a strategic habitat
139	conservation area pursuant to maps issued by the Fish and
140	Wildlife Conservation Commission or other readily available and
141	officially adopted governmental maps and information if:
142	a. The transferor, or the transferor's agent, has actual
143	knowledge that the property is located in a strategic habitat
144	conservation area; or
145	b. Other readily available and officially adopted
146	governmental information exists regarding a strategic habitat
147	conservation area.
148	7. A person who is acting as an agent for a transferor of
149	real property that is located within 2 statute miles of an
150	airport influence area or a landing facility approved by the
151	Federal Aviation Administration, or the transferor, if he or she
152	is acting without an agent, shall disclose to any prospective
153	transferee the fact that the property is located within 2
154	statute miles of an airport influence area or a landing facility
155	approved by the Federal Aviation Administration, the Department
156	of Transportation, Division of Aeronautics, and the local land
157	use commission if:
158	a. The transferor, or the transferor's agent, has actual
159	knowledge that the property is located within 2 statute miles of
160	an airport influence area or a landing facility approved by the
161	Federal Aviation Administration; or
162	b. Other readily available and officially adopted
163	governmental information exists regarding an airport influence
164	area or a landing facility approved by the Federal Aviation
165	Administration.
166	8. A person who is acting as an agent for a transferor of
167	real property that is located within a quarter of a mile of an
168	environmental hazard site, limited to filed governmental
169	reports, or the transferor, if he or she is acting without an
170	agent, shall disclose to any prospective transferee the fact
171	that the property is located within a quarter of a mile of an
172	environmental hazard site, including leaking underground storage
173	tanks, solid waste landfills, incinerators or transfer stations,
174	national priority list sites, or CERCLIS sites under review by
175	the United States Environmental Protection Agency if:
176	a. The transferor, or the transferor's agent, has actual
177	knowledge that the property is located within a quarter of a
178	mile of an environmental site; or
179	b. Other readily available and officially adopted
180	governmental information exists regarding environmental hazard
181	sites.
182	9. A person who is acting as an agent for a transferor of
183	real property that is located within a mapped radon gas
184	potential zone pursuant to maps issued by the United States
185	Environmental Protection Agency or other readily available and
186	officially adopted governmental maps and information, or the
187	transferor, if he or she is acting without an agent, shall
188	disclose to any prospective transferee the fact that the
189	property is located within a mapped radon gas potential zone if:
190	a. The transferor, or the transferor's agent, has actual
191	knowledge that the property is located in a mapped radon gas
192	potential zone; or
193	b. Other readily available and officially adopted
194	governmental information exists regarding radon gas.
195	(c) Any waiver of the requirements of this section is void
196	as against public policy.
197	(2)(a) This section does not apply to the following
198	transfers:
199	1. Transfers pursuant to court order, including, but not
200	limited to, transfers ordered by a probate court in
201	administration of an estate, transfers pursuant to a writ of
202	execution, transfers by any foreclosure sale, transfers by a
203	trustee in bankruptcy, transfers by eminent domain, and
204	transfers resulting from a decree for specific performance.
205	2. Transfers to a mortgagee by a mortgagor or successor in
206	interest who is in default, transfers to a beneficiary of a deed
207	of trust by a trustor or successor in interest who is in
208	default, transfers by any foreclosure sale after default,
209	transfers by any foreclosure sale after default in an obligation
210	secured by a mortgage, transfers by a sale under a power of sale
211	or any foreclosure sale under a decree of foreclosure after
212	default in an obligation secured by a deed of trust or secured
213	by any other instrument containing a power of sale, or transfers
214	by a mortgagee or a beneficiary under a deed of trust who has
215	acquired the real property at a sale conducted pursuant to a
216	power of sale under a mortgage or deed of trust or a sale
217	pursuant to a decree of foreclosure or has acquired the real
218	property by a deed in lieu of foreclosure.
219	3. Transfers by a fiduciary in the course of the
220	administration of a decedent's estate, guardianship,
221	conservatorship, or trust.
222	4. Transfers from one coowner to one or more other
223	coowners.
224	5. Transfers made to a spouse or to a person or persons in
225	the lineal line of consanguinity of one or more of the
226	transferors.
227	6. Transfers between spouses resulting from a judgment of
228	dissolution of marriage or of legal separation of the parties or
229	from a property settlement agreement incidental to that
230	judgment.
231	7. Transfers or exchanges to or from any governmental
232	entity.
233	8. Transfers by sale, resale, exchange, or installment
234	land sales contract of any manufactured mobile home, mobile home
235	park, or residential manufactured building.
236	(b) Transfers not subject to this section may be subject
237	to other disclosure requirements. In transfers that are not
238	subject to this section, agents may make required disclosures in
239	a separate writing.
240	(3)(a) The disclosures required by this section are set
241	forth in, and shall be made on a copy of, the following Property
242	Identification Disclosure Statement:
243
244	PROPERTY IDENTIFICATION DISCLOSURE STATEMENT
245
246	This statement applies to the following property:
247	_____________________
248
249	The transferor and his or her agent(s) disclose the following
250	information with the knowledge that even though this is not a
251	warranty, prospective transferees may rely on this information
252	in deciding whether and on what terms to purchase the subject
253	property.
254
255	Transferor hereby authorizes any agent(s) representing any
256	principal(s) in this action to provide a copy of this statement
257	to any person or entity in connection with any actual or
258	anticipated sale of the property.
259
260	The following are representations made by the transferor and his
261	or her agent(s) based on their knowledge and official maps and
262	information prepared by the state and federal governments. This
263	information is a disclosure and is not intended to be part of
264	any contract between the transferee and transferor.
265
266	THIS REAL PROPERTY LIES WITHIN THE FOLLOWING AREA(S):
267
268	(1) A SPECIAL FLOOD HAZARD AREA (Any type Zone "A" or "V")
269	designated by the Federal Emergency Management Agency.
270
271	Yes _____ No _____ Do not know and information not available
272	_____ Pending _____
273
274	(2) ON SOILS WITH VERY SEVERE CONSTRAINTS FOR DEVELOPMENT
275	pursuant to maps issued by the United States Department of
276	Agriculture or other readily available and officially adopted
277	governmental maps and information.
278
279	Yes _____ No _____ Do not know and information not available
280	_____ Pending _____
281
282	(3) AN AREA IMPACTED BY SINKHOLE ACTIVITY pursuant to
283	readily available and officially adopted governmental maps and
284	information.
285
286	Yes _____ No _____ Do not know and information not available
287	_____ Pending _____
288
289	(4) WITHIN A QUARTER OF A MILE OF A WELLHEAD PROTECTION
290	AREA pursuant to maps issued by the Department of Environmental
291	Protection or a water management district or other readily
292	available and officially adopted governmental maps and
293	information.
294
295	Yes _____ No _____ Do not know and information not available
296	_____ Pending _____
297
298	(5) A PRIORITY WETLAND ZONE pursuant to maps issued by the
299	Fish and Wildlife Conservation Commission or other readily
300	available and officially adopted governmental maps and
301	information.
302
303	Yes _____ No _____ Do not know and information not available
304	_____ Pending _____
305
306	(6) A STRATEGIC HABITAT CONSERVATION AREA pursuant to maps
307	issued by the Fish and Wildlife Conservation Commission or other
308	readily available and officially adopted governmental maps and
309	information.
310
311	Yes _____ No _____ Do not know and information not available
312	_____ Pending _____
313
314	(7) WITHIN 2 STATUTE MILES OF AN AIRPORT INFLUENCE AREA OR
315	A LANDING FACILITY approved by the Federal Aviation
316	Administration.
317
318	Yes _____ No _____ Do not know and information not available
319	_____ Pending _____
320
321	(8) WITHIN A QUARTER OF A MILE OF AN ENVIRONMENTAL HAZARD
322	SITE, including leaking underground storage tanks, solid waste
323	landfills, incinerators or transfer stations, national priority
324	list sites, and/or CERCLIS sites under review by the United
325	States Environmental Protection Agency.
326
327	Yes _____ No _____ Do not know and information not available
328	_____ Pending _____
329
330	(9) WITHIN A MAPPED RADON GAS POTENTIAL ZONE pursuant to
331	maps issued by the United States Environmental Protection Agency
332	or other readily available and officially adopted governmental
333	maps and information.
334
335	Yes _____ No _____ Do not know and information not available
336	_____ Pending _____
337
338	THESE ZONES MAY LIMIT YOUR ABILITY TO DEVELOP THE REAL PROPERTY,
339	TO OBTAIN INSURANCE, OR TO RECEIVE ASSISTANCE AFTER A DISASTER.
340
341	THE MAPS AND INFORMATION ON WHICH THESE DISCLOSURES ARE BASED
342	ARE ESTIMATES WHERE THE APPLICABLE ZONES AND PROTECTED LANDS
343	EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A
344	PROPERTY WILL BE AFFECTED BY A NATURAL OR ENVIRONMENTAL
345	DISASTER. TRANSFEREE(S) AND TRANSFEROR(S) MAY WISH TO OBTAIN
346	PROFESSIONAL ADVICE REGARDING THESE AND OTHER HAZARDS AND
347	PROTECTION ZONES THAT MAY AFFECT THE PROPERTY.
348
349	Transferor represents that the information herein is true and
350	correct to the best of the transferor's knowledge as of the date
351	signed by the transferor.
352
353	Signature of Transferor: Date:________
354
355	Signature of Transferor: Date:________
356
357	Agent represents that the information herein is true and correct
358	to the best of the agent's knowledge as of the date signed by
359	the agent.
360
361	Signature of Transferor's Agent: Date:________
362
363	Signature of Transferor's Agent: Date:________
364
365	Transferee represents that he or she has read and understands
366	this document.
367
368	Signature of Transferee: Date:________
369
370	Signature of Transferee: Date:________
371
372	(b) If a map or accompanying information is not of
373	sufficient accuracy or scale that a reasonable person can
374	determine if the subject real property is included in an
375	applicable area, the transferor or transferor's agent shall mark
376	"Yes" on the Property Identification Disclosure Statement. The
377	transferor or transferor's agent may mark "No" on the Property
378	Identification Disclosure Statement if he or she attaches a
379	report prepared pursuant to paragraph (5)(c) which verifies that
380	the property is not in the applicable zone. This paragraph does
381	not limit or abridge any existing duty of the transferor or the
382	transferor's agents to exercise reasonable care in making a
383	determination under this subsection.
384	(c) If the Federal Emergency Management Agency has issued
385	a Letter of Map Revision confirming that a property is no longer
386	within a special flood hazard area, the transferor or
387	transferor's agent may mark "No" on the Property Identification
388	Disclosure Statement, even if the map has not yet been updated.
389	(d) If the Federal Emergency Management Agency has issued
390	a Letter of Map Revision confirming that a property is within a
391	special flood hazard area and the location of the letter has
392	been posted, the transferor or transferor's agent shall mark
393	"Yes" on the Property Identification Disclosure Statement, even
394	if the map has not yet been updated.
395	(e) The disclosure required by this section is a
396	disclosure only between the transferor, the transferor's agents,
397	and the transferee and may not be used by any other party,
398	including, but not limited to, insurance companies, lenders, or
399	governmental agencies, for any purpose.
400	(4)(a) The transferor of any real property subject to this
401	section shall deliver to the prospective transferee the written
402	statement required by this section, as follows:
403	1. In the case of a sale, as soon as practicable before
404	transfer of title.
405	2. In the case of transfer by a real property sales
406	contract or by a lease together with an option to purchase, or a
407	ground lease coupled with improvements, as soon as practicable
408	before execution of the contract. For the purpose of this
409	subparagraph, "execution" means the making or acceptance of an
410	offer.
411	(b) The transferor shall indicate compliance with this
412	section either on the receipt for deposit, the real property
413	sales contract, the lease, or any addendum attached thereto or
414	on a separate document.
415	(c) If any disclosure, or any material amendment of any
416	disclosure, required to be made pursuant to this section is
417	delivered after the execution of an offer to purchase, the
418	transferee shall have 3 days after delivery in person or 5 days
419	after delivery by deposit in the mail to terminate his or her
420	offer by delivery of a written notice of termination to the
421	transferor or the transferor's agent.
422	(5)(a) Neither the transferor nor any listing or selling
423	agent shall be liable for any error, inaccuracy, or omission of
424	any information delivered pursuant to this section if the error,
425	inaccuracy, or omission was not within the personal knowledge of
426	the transferor or the listing or selling agent and was based on
427	information timely provided by public agencies or by other
428	persons providing information as specified in paragraph (c)
429	which is required to be disclosed pursuant to this section and
430	if ordinary care was exercised in obtaining and transmitting the
431	information.
432	(b) The delivery of any information required to be
433	disclosed by this section to a prospective transferee by a third
434	party providing information required to be disclosed pursuant to
435	this section shall be deemed to comply with the requirements of
436	this section and shall relieve the transferor or any listing or
437	selling agent of any further duty under this section with
438	respect to that item of information.
439	(c) The delivery of a report or opinion prepared by a
440	licensed engineer, land surveyor, or expert in locating the
441	applicable zones on readily available official governmental maps
442	and information concerning matters within the scope of the
443	professional's license or expertise is sufficient compliance for
444	application of the exemption provided by paragraph (a) if the
445	information is provided to the prospective transferee pursuant
446	to a request therefor, whether written or oral. In responding to
447	that request, an expert may indicate, in writing, an
448	understanding that the information provided will be used in
449	fulfilling the requirements of subsection (3) and, if so, shall
450	indicate the required disclosures, or parts thereof, to which
451	the information being furnished is applicable. If that statement
452	is furnished, the expert is not responsible for any items of
453	information, or parts thereof, other than those expressly set
454	forth in the statement.
455	(d) A third party providing the information on behalf of
456	the transferor and the transferor's agent fulfilling the
457	requirements of subsection (3) to be disclosed by this section
458	shall maintain a minimum of $20 million of insurance protection
459	to protect the transferor and the transferor's agent for any
460	errors or omissions made by the third party.
461	(6)(a) After a transferor and his or her agent comply with
462	subsection (3), they are relieved of further duty under this
463	section with respect to those items of information. The
464	transferor and his or her agent are not required to provide
465	notice to the transferee if the information provided
466	subsequently becomes inaccurate as a result of any governmental
467	action, map revision, changed information, or other act or
468	occurrence, unless the transferor or the transferor's agent has
469	actual knowledge that the information has become inaccurate.
470	(b) If information disclosed in accordance with this
471	section is subsequently rendered inaccurate as a result of any
472	governmental action, map revision, changed information, or other
473	act or occurrence subsequent to the delivery of the required
474	disclosures, the inaccuracy resulting therefrom does not
475	constitute a violation of this section.
476	(7) Each disclosure required by this section and each act
477	that may be performed in making the disclosure shall be made in
478	good faith. For purposes of this section, "good faith" means
479	honesty in fact in the conduct of the transaction.
480	(8) The specification of items for disclosure in this
481	section does not limit or abridge any obligation for disclosure
482	created by any other provision of law or that may exist in order
483	to avoid fraud, misrepresentation, or deceit in the transfer
484	transaction. The Legislature does not intend to affect the
485	existing obligations of the parties to a real estate contract,
486	or their agents, or to disclose any fact materially affecting
487	the value and desirability of the property, including, but not
488	limited to, the physical condition of the property and
489	previously received reports of physical inspection.
490	(9) Any disclosure made pursuant to this section may be
491	amended in writing by the transferor or his or her agent, but
492	the amendment shall be subject to subsection (4).
493	(10) Delivery of disclosures required by this section
494	shall be by personal delivery to the transferee or by mail to
495	the prospective transferee. For the purposes of this section,
496	delivery to the spouse of a transferee shall be deemed delivery
497	to the transferee, unless provided otherwise by contract.
498	(11) Any person or entity, other than a real estate
499	licensee licensed in this state and acting in the capacity of an
500	escrow agent for the transfer of real property subject to this
501	section, shall not be deemed the agent of the transferor or
502	transferee for purposes of the disclosure requirements of this
503	section unless the person or entity is empowered to so act by an
504	express written agreement to that effect. The extent of that
505	agency shall be governed by the written agreement.
506	(12)(a) If more than one licensed real estate broker is
507	acting as an agent in a transaction subject to this section, the
508	broker who has obtained the offer made by the transferee shall,
509	except as otherwise provided in this section, deliver the
510	disclosure required by this section to the transferee, unless
511	the transferor has given other written instructions for
512	delivery.
513	(b) If a licensed real estate broker responsible for
514	delivering the disclosure under this section cannot obtain the
515	disclosure document required and does not have written assurance
516	from the transferee that the disclosure has been received, the
517	broker shall advise the transferee in writing of his or her
518	rights to the disclosure. A licensed real estate broker
519	responsible for delivering disclosures under this section shall
520	maintain a record of the action taken to effect compliance of
521	the transaction.
522	(13) A transfer subject to this section may not be
523	invalidated solely because of the failure of any person to
524	comply with any provision of this section. However, any person
525	who willfully or negligently violates or fails to perform any
526	duty prescribed by any provision of this section shall be liable
527	in the amount of actual damages suffered by a transferee.
528	(14)(a) As used in this section, the term "listing agent"
529	means an individual who has obtained a listing of property of
530	the kind in respect of which he or she is authorized by law to
531	act as an agent for compensation.
532	(b) As used in this section, the term "selling agent"
533	means an individual who acts in cooperation with a listing agent
534	and who sells, or finds and obtains a buyer for, the property.
535	Section 2. This act shall take effect July 1, 2003.