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