Senate Bill sb2018c1
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Florida Senate - 2003 CS for SB 2018
By the Committee on Judiciary; and Senator Diaz de la Portilla
308-2013-03
1 A bill to be entitled
2 An act relating to sales disclosures; creating
3 s. 475.423, F.S.; specifying the transactions
4 that are subject to the requirements of the
5 act; providing definitions; requiring that
6 certain disclosures be made by the transferor
7 or his or her agent with respect to real
8 property located within a flood hazard area, an
9 area with severe constraints for development,
10 an area having sinkhole activity, a wellhead
11 protection area, a priority wetland zone, a
12 habitat conservation area, an airport influence
13 area, an environmental site, or a radon gas
14 zone; providing that the waiver of such
15 requirements is against public policy;
16 providing certain exceptions; specifying the
17 form to be used as the Property Identification
18 Disclosure Statement; providing requirements
19 for identifying information that accompanies
20 the disclosure statement; prohibiting the use
21 of the disclosure statement by certain entities
22 other than the transferor, the transferor's
23 agents, and the transferee; providing
24 requirements for delivery of the required
25 disclosure statement; providing a limitation
26 with respect to liability for errors,
27 inaccuracy, or omissions; requiring a third
28 party that provides information with respect to
29 the disclosure statement to maintain a
30 specified amount of insurance protection;
31 providing that certain subsequent inaccuracies
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1 with respect to the information disclosed are
2 not a violation of the act; requiring that
3 disclosures be made in good faith; providing
4 that the act does not limit or abridge other
5 disclosures required by law; authorizing the
6 amendment of a disclosure; providing for
7 delivery of disclosures; providing requirements
8 for the licensee or broker acting as an agent
9 in a transaction subject to the act; providing
10 an effective date.
11
12 Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Section 475.423, Florida Statutes, is
15 created to read:
16 475.423 Property identification disclosure
17 statement.--
18 (1)(a) Except as provided in subsection (2), this
19 section applies to any transfer by sale, exchange, or
20 installment land sale contract of residential, undeveloped, or
21 commercial land, wherein one party agrees to convey title to
22 real property to another party upon the satisfaction of
23 specified conditions set forth in the contract and which does
24 not require conveyance of title within 1 year after the date
25 of formation of the contract, lease with an option to
26 purchase, any other option to purchase, ground lease coupled
27 with improvements of any real property described in paragraph
28 (c), or residential stock cooperative, improved with or
29 consisting of not less than one or more than four dwelling
30 units.
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1 (b) The transferor or his or her agent is required by
2 one or more of the following to disclose the property's
3 location within an applicable zone:
4 1. A person who is either acting as an agent for a
5 transferor of real property that is located within a special
6 flood hazard area, which is any type Zone "A" or "V" as
7 designated by the Federal Emergency Management Agency, or the
8 transferor, if he or she is acting without an agent, shall
9 disclose to any prospective transferee the fact that the
10 property is located within a special flood hazard area if:
11 a. The transferor, or the transferor's agent, has
12 actual knowledge that the property is within a special flood
13 hazard area; or
14 b. Other readily available and officially adopted
15 governmental information exists regarding the flood zone.
16 2. A person who is acting as an agent for a transferor
17 of real property that is located on soils with very severe
18 constraints for development, or the transferor, if he or she
19 is acting without an agent, shall disclose to any prospective
20 transferee the fact that the property is located on soils with
21 very severe constraints for development pursuant to maps
22 issued by the United States Department of Agriculture or other
23 readily available and officially adopted governmental maps and
24 information if:
25 a. The transferor, or the transferor's agent, has
26 actual knowledge that the property is on soils with very
27 severe constraints for development; or
28 b. Other readily available and officially adopted
29 governmental information exists regarding the soils with very
30 severe constraints for development.
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1 3. A person who is acting as an agent for a transferor
2 of real property that is located in an area impacted by
3 sinkhole activity, or the transferor if he or she is acting
4 without an agent, shall disclose to any prospective transferee
5 the fact that the property is located in an area impacted by
6 sinkhole activity pursuant to readily available and officially
7 adopted governmental maps and information if:
8 a. The transferor, or the transferor's agent, has
9 actual knowledge that the property is in an area impacted by
10 sinkhole activity; or
11 b. Other readily available and officially adopted
12 governmental information exists regarding sinkhole activity.
13 4. A person who is acting as an agent for a transferor
14 of real property that is located within one quarter of a mile
15 of a wellhead protection area, or the transferor if he or she
16 is acting without an agent, shall disclose to any prospective
17 transferee the fact that the property is located within one
18 quarter of a mile of a wellhead protection area according to
19 maps issued by the Department of Environmental Protection or a
20 water management district or other readily available and
21 officially adopted governmental maps and information if:
22 a. The transferor, or the transferor's agent, has
23 actual knowledge that the property is located within one
24 quarter of a mile of a wellhead protection area; or
25 b. Other readily available and officially adopted
26 governmental information exists regarding a wellhead
27 protection area.
28 5. A person who is acting as an agent for a transferor
29 of real property that is located in a priority wetland zone,
30 or the transferor if he or she is acting without an agent,
31 shall disclose to any prospective transferee the fact that the
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1 property is located in a priority wetland zone pursuant to
2 maps issued by the Fish and Wildlife Conservation Commission
3 or other readily available and officially adopted governmental
4 maps and information if:
5 a. The transferor, or the transferor's agent, has
6 actual knowledge that the property is located in a priority
7 wetland zone; or
8 b. Other readily available and officially adopted
9 governmental information regarding a priority wetland zone.
10 6. A person who is acting as an agent for a transferor
11 of real property that is located in a strategic habitat
12 conservation area, or the transferor if he or she is acting
13 without an agent, shall disclose to any prospective transferee
14 the fact that the property is located in a strategic habitat
15 conservation area pursuant to maps issued by the Fish and
16 Wildlife Conservation Commission or other readily available
17 and officially adopted governmental maps and information if:
18 a. The transferor, or the transferor's agent, has
19 actual knowledge that the property is located in a strategic
20 habitat conservation area; or
21 b. Other readily available and officially adopted
22 governmental information exists regarding a strategic habitat
23 conservation area.
24 7. A person who is acting as an agent for a transferor
25 of real property that is located within 2 statute miles of an
26 airport influence area or a landing facility approved by the
27 Federal Aviation Administration, or the transferor if he or
28 she is acting without an agent, shall disclose to any
29 prospective transferee the fact that the property is located
30 within 2 statute miles of an airport influence area or a
31 landing facility approved by the Federal Aviation
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1 Administration, the Department of Transportation, Division of
2 Aeronautics, and local land use commission if:
3 a. The transferor, or the transferor's agent, has
4 actual knowledge that the property is located within 2 statute
5 miles of an airport influence area or a landing facility
6 approved by the Federal Aviation Administration; or
7 b. Other readily available and officially adopted
8 governmental information exists regarding an airport influence
9 area or a landing facility approved by the Federal Aviation
10 Administration.
11 8. A person who is acting as an agent for a transferor
12 of real property that is located within a quarter of a mile of
13 an environmental site, limited to filed governmental reports,
14 or the transferor if he or she is acting without an agent,
15 shall disclose to any prospective transferee the fact that the
16 property is located within a quarter of a mile of an
17 environmental site, including leaking underground storage
18 tanks, solid waste landfills, incinerators or transfer
19 stations, national priority list sites, or CERCLIS sites under
20 review by the United States Environmental Protection Agency
21 if:
22 a. The transferor, or the transferor's agent, has
23 actual knowledge that the property is located within a quarter
24 of a mile of an environmental site; or
25 b. Other readily available and officially adopted
26 governmental information exists regarding environmental
27 hazards sites.
28 9. A person who is acting as an agent for a transferor
29 of real property that is located within a mapped radon gas
30 potential zone pursuant to maps issued by the United States
31 Environmental Protection Agency or other readily available and
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1 officially adopted governmental maps and information shall
2 disclose to any prospective transferee the fact that the
3 property is located within a mapped radon gas potential zone
4 if:
5 a. The transferor, or the transferor's agent, has
6 actual knowledge that the property is located in a mapped
7 radon gas potential zone; or
8 b. Other readily available and officially adopted
9 governmental information exists regarding radon gas.
10 (c) Any waiver of the requirements of this section is
11 void as against public policy.
12 (2)(a) This section does not apply to the following
13 transfers:
14 1. Transfers pursuant to court order, including, but
15 not limited to, transfers ordered by a probate court in
16 administration of an estate, transfers pursuant to a writ of
17 execution, transfers by any foreclosure sale, transfers by a
18 trustee in bankruptcy, transfers by eminent domain, and
19 transfers resulting from a decree for specific performance.
20 2. Transfers to a mortgagee by a mortgagor or
21 successor in interest who is in default, transfers to a
22 beneficiary of a deed of trust by a trustor or successor in
23 interest who is in default, transfers by any foreclosure sale
24 after default, transfers by any foreclosure sale after default
25 in an obligation secured by a mortgage, transfers by a sale
26 under a power of sale or any foreclosure sale under a decree
27 of foreclosure after default in an obligation secured by a
28 deed of trust or secured by any other instrument containing a
29 power of sale, or transfers by a mortgagee or a beneficiary
30 under a deed of trust who has acquired the real property at a
31 sale conducted pursuant to a power of sale under a mortgage or
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1 deed of trust or a sale pursuant to a decree of foreclosure or
2 has acquired the real property by a deed in lieu of
3 foreclosure.
4 3. Transfers by a fiduciary in the course of the
5 administration of a decedent's estate, guardianship,
6 conservatorship, or trust.
7 4. Transfers from one coowner to one or more other
8 coowners.
9 5. Transfers made to a spouse, or to a person or
10 persons in the lineal line of consanguinity of one or more of
11 the transferors.
12 6. Transfers between spouses resulting from a judgment
13 of dissolution of marriage or of legal separation of the
14 parties or from a property settlement agreement incidental to
15 that judgment.
16 7. Transfers or exchanges to or from any governmental
17 entity.
18 8. Transfers by sale, resale, exchange, or installment
19 land sales contract of any manufactured mobile home, mobile
20 home park, or residential manufactured building.
21 (b) Transfers not subject to this section may be
22 subject to other disclosure requirements. In transfers that
23 are not subject to this section, agents may make required
24 disclosures in a separate writing.
25 (3)(a) The disclosures required by this section are
26 set forth in, and shall be made on a copy of, the following
27 Property Identification Disclosure Statement:
28
29 PROPERTY IDENTIFICATION DISCLOSURE STATEMENT
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1 This statement applies to the following property:
2 _____________________
3
4 The transferor and his or her agent(s) disclose the following
5 information with the knowledge that even though this is not a
6 warranty, prospective transferees may rely on this information
7 in deciding whether and on what terms to purchase the subject
8 property.
9
10 Transferor hereby authorizes any agent(s) representing any
11 principal(s) in this action to provide a copy of this
12 statement to any person or entity in connection with any
13 actual or anticipated sale of the property.
14
15 The following are representations made by the transferor and
16 his or her agent(s) based on their knowledge and official maps
17 and information prepared by the state and federal governments.
18 This information is a disclosure and is not intended to be
19 part of any contract between the transferee and transferor.
20
21 THIS REAL PROPERTY LIES WITHIN THE FOLLOWING AREA(S):
22
23 (1) A SPECIAL FLOOD HAZARD AREA (Any type Zone "A" or
24 "V") designated by the Federal Emergency Management Agency.
25 Yes _____ No _____ Do not know and information not
26 available ____ Pending _____
27
28 (2) ON SOILS WITH VERY SEVERE CONSTRAINTS FOR
29 DEVELOPMENT, pursuant to maps issued by the United States
30 Department of Agriculture or other readily available and
31 officially adopted governmental maps and information.
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1 Yes _____ No _____ Do not know and information not
2 available _____ Pending _____
3 (3) AN AREA IMPACTED BY SINKHOLE ACTIVITY pursuant to
4 readily available and officially adopted governmental maps and
5 information.
6 Yes _____ No _____ Do not know and information not
7 available _____ Pending _____
8
9 (4) WITHIN ONE QUARTER OF A MILE OF A WELLHEAD
10 PROTECTION AREA pursuant to maps issued by the Department of
11 Environmental Protection and Water Management Districts or
12 other readily available and officially adopted governmental
13 maps and information.
14 Yes _____ No _____ Do not know and information not
15 available _____ Pending _____
16
17 (5) A PRIORITY WETLAND ZONE pursuant to maps issued by
18 the Fish and Wildlife Conservation Commission or other readily
19 available and officially adopted governmental maps and
20 information.
21 Yes _____ No _____ Do not know and information not
22 available _____ Pending _____
23
24 (6) A STRATEGIC HABITAT CONSERVATION AREA pursuant to
25 maps issued by the Fish and Wildlife Conservation Commission
26 or other readily available and officially adopted governmental
27 maps and information.
28 Yes _____ No _____ Do not know and information not
29 available _____ Pending _____
30
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1 (7) WITHIN A QUARTER MILE OF AN AIRPORT INFLUENCE AREA
2 approved by the Federal Aviation Administration, or other
3 readily available and officially adopted governmental maps and
4 information.
5 Yes _____ No _____ Do not know and information not
6 available _____ Pending _____
7
8 (8) WITHIN A QUARTER OF A MILE OF AN ENVIRONMENTAL
9 HAZARD SITE including Leaking Underground Storage Tanks, Solid
10 Waste Landfills, Incinerators or Transfer Stations, National
11 Priority List Sites, and/or CERCLIS Sites under review by the
12 United States Environmental Protection Agency.
13 Yes _____ No _____ Do not know and information not
14 available _____ Pending _____
15
16 (9) WITHIN A MAPPED RADON GAS POTENTIAL ZONE pursuant
17 to maps issued by the United States Environmental Protection
18 Agency or other readily available and officially adopted
19 governmental maps and information.
20 Yes _____ No _____ Do not know and information not
21 available _____ Pending _____
22
23 THESE ZONES MAY LIMIT YOUR ABILITY TO DEVELOP THE REAL
24 PROPERTY, TO OBTAIN INSURANCE, OR TO RECEIVE ASSISTANCE AFTER
25 A DISASTER.
26
27 THE MAPS AND INFORMATION ON WHICH THESE DISCLOSURES ARE BASED
28 ARE ESTIMATES WHERE THE APPLICABLE ZONES AND PROTECTED LANDS
29 EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A
30 PROPERTY WILL BE AFFECTED BY A NATURAL OR ENVIRONMENTAL
31 DISASTER. TRANSFEREE(S) AND TRANSFEROR(S) MAY WISH TO OBTAIN
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1 PROFESSIONAL ADVICE REGARDING THESE AND OTHER HAZARDS AND
2 PROTECTION ZONES THAT MAY AFFECT THE PROPERTY.
3
4 Transferor represents that the information herein is true and
5 correct to the best of the transferor's knowledge as of the
6 date signed by the transferor.
7
8 Signature of Transferor __________________ Date ____________
9
10 Signature of Transferor __________________ Date ____________
11
12 Agent represents that the information herein is true and
13 correct to the best of the agent's knowledge as of the date
14 signed by the agent.
15
16 Signature of Transferor's Agent ___________________
17 Date __________
18
19 Signature of Transferor's Agent ___________________
20 Date __________
21
22 Transferee represents that he or she has read and understands
23 this document.
24
25 Signature of Transferee ________________ Date ___________
26
27 Signature of Transferee ________________ Date ___________
28 (b) If a map or accompanying information is not of
29 sufficient accuracy or scale that a reasonable person can
30 determine if the subject real property is included in an
31 applicable area, the transferor or transferor's agent shall
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1 mark "Yes" on the Property Identification Disclosure
2 Statement. The transferor or transferor's agent may mark "No"
3 on the Property Identification Disclosure Statement if he or
4 she attaches a report prepared pursuant to paragraph (5)(c)
5 which verifies that the property is not in the applicable
6 zone. This paragraph does not limit or abridge any existing
7 duty of the transferor or the transferor's agents to exercise
8 reasonable care in making a determination under this
9 subsection.
10 (c) If the Federal Emergency Management Agency has
11 issued a Letter of Map Revision confirming that a property is
12 no longer within a special flood hazard area, the transferor
13 or transferor's agent may mark "No" on the Property
14 Identification Disclosure Statement, even if the map has not
15 yet been updated.
16 (d) If the Federal Emergency Management Agency has
17 issued a Letter of Map Revision confirming that a property is
18 within a special flood hazard area and the location of the
19 letter has been posted then the transferor or transferor's
20 agent shall mark "Yes" on the Property Identification
21 Disclosure Statement, even if the map has not yet been
22 updated.
23 (f) The disclosure required by this section is a
24 disclosure only between the transferor, the transferor's
25 agents, and the transferee, and may not be used by any other
26 party, including, but not limited to, insurance companies,
27 lenders, or governmental agencies, for any purpose.
28 (g) In any transaction in which a transferor has
29 accepted, prior to the effective date of this section, an
30 offer to purchase, the transferor, or his or her agent, shall
31 be deemed to have complied with the requirement of paragraph
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1 (a) if the transferor or agent delivers to the prospective
2 transferee a statement that includes substantially the same
3 information and warning as the Property Identification
4 Disclosure Statement.
5 (4)(a) The transferor of any real property subject to
6 this section shall deliver to the prospective transferee the
7 written statement required by this section, as follows:
8 1. In the case of a sale, as soon as practicable
9 before transfer of title.
10 2. In the case of transfer by a real property sales
11 contract or by a lease together with an option to purchase, or
12 a ground lease coupled with improvements, as soon as
13 practicable before execution of the contract. For the purpose
14 of this subparagraph, "execution" means the making or
15 acceptance of an offer.
16 (b) The transferor shall indicate compliance with this
17 section either on the receipt for deposit, the real property
18 sales contract, the lease, any addendum attached thereto, or
19 on a separate document.
20 (c) If any disclosure, or any material amendment of
21 any disclosure, required to be made pursuant to this section
22 is delivered after the execution of an offer to purchase, the
23 transferee shall have 3 days after delivery in person or 5
24 days after delivery by deposit in the mail to terminate his or
25 her offer by delivery of a written notice of termination to
26 the transferor or the transferor's agent.
27 (5)(a) Neither the transferor nor any listing or
28 selling agent shall be liable for any error, inaccuracy, or
29 omission of any information delivered pursuant to this section
30 if the error, inaccuracy, or omission was not within the
31 personal knowledge of the transferor or the listing or selling
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1 agent, and was based on information timely provided by public
2 agencies or by other persons providing information as
3 specified in paragraph (c) which is required to be disclosed
4 pursuant to this section, and ordinary care was exercised in
5 obtaining and transmitting the information.
6 (b) The delivery of any information required to be
7 disclosed by this section to a prospective transferee by a
8 third party providing information required to be disclosed
9 pursuant to this section shall be deemed to comply with the
10 requirements of this section and shall relieve the transferor
11 or any listing or selling agent of any further duty under this
12 section with respect to that item of information.
13 (c) The delivery of a report or opinion prepared by a
14 licensed engineer, land surveyor, or expert in locating the
15 applicable zones on readily available official governmental
16 maps and information concerning matters within the scope of
17 the professional's license or expertise is sufficient
18 compliance for application of the exemption provided by
19 paragraph (a) if the information is provided to the
20 prospective transferee pursuant to a request therefore,
21 whether written or oral. In responding to that request, an
22 expert may indicate, in writing, an understanding that the
23 information provided will be used in fulfilling the
24 requirements of subsection (3) and, if so, shall indicate the
25 required disclosures, or parts thereof, to which the
26 information being furnished is applicable. If that statement
27 is furnished, the expert is not responsible for any items of
28 information, or parts thereof, other than those expressly set
29 forth in the statement.
30 (d) A third party providing the information on behalf
31 of the transferor and the transferor's agent fulfilling the
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1 requirements of subsection (3) to be disclosed by this section
2 shall maintain a minimum of $20 million of insurance
3 protection to protect the transferor and the agents for any
4 errors or omissions made by the third party.
5 (6)(a) After a transferor and his or her agent comply
6 with subsection (3), they are relieved of further duty under
7 this section with respect to those items of information. The
8 transferor and his or her agent are not required to provide
9 notice to the transferee if the information provided
10 subsequently becomes inaccurate as a result of any
11 governmental action, map revision, changed information, or
12 other act or occurrence, unless the transferor or agent has
13 actual knowledge that the information has become inaccurate.
14 (b) If information disclosed in accordance with this
15 section is subsequently rendered inaccurate as a result of any
16 governmental action, map revision, changed information, or
17 other act or occurrence subsequent to the delivery of the
18 required disclosures, the inaccuracy resulting therefrom does
19 not constitute a violation of this section.
20 (7) Each disclosure required by this section and each
21 act that may be performed in making the disclosure shall be
22 made in good faith. For purposes of this section, "good faith"
23 means honesty in fact in the conduct of the transaction.
24 (8) The specification of items for disclosure in this
25 section does not limit or abridge any obligation for
26 disclosure created by any other provision of law or that may
27 exist in order to avoid fraud, misrepresentation, or deceit in
28 the transfer transaction. The Legislature does not intend to
29 affect the existing obligations of the parties to a real
30 estate contract, or their agents, or to disclose any fact
31 materially affecting the value and desirability of the
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1 property, including, but not limited to, the physical
2 condition of the property and previously received reports of
3 physical inspection.
4 (9) Any disclosure made pursuant to this section may
5 be amended in writing by the transferor or his or her agent,
6 but the amendment shall be subject to subsection (4).
7 (10) Delivery of disclosures required by this section
8 shall be by personal delivery to the transferee or by mail to
9 the prospective transferee. For the purposes of this section,
10 delivery to the spouse of a transferee shall be deemed
11 delivery to the transferee, unless provided otherwise by
12 contract.
13 (11) Any person or entity, other than a real estate
14 licensee licensed in this state and acting in the capacity of
15 an escrow agent for the transfer of real property subject to
16 this section, shall not be deemed the agent of the transferor
17 or transferee for purposes of the disclosure requirements of
18 this section unless the person or entity is empowered to so
19 act by an express written agreement to that effect. The extent
20 of that agency shall be governed by the written agreement.
21 (12)(a) If more than one licensed real estate broker
22 is acting as an agent in a transaction subject to this
23 section, the broker who has obtained the offer made by the
24 transferee shall, except as otherwise provided in this
25 section, deliver the disclosure required by this section to
26 the transferee, unless the transferor has given other written
27 instructions for delivery.
28 (b) If a licensed real estate broker responsible for
29 delivering the disclosure under this section cannot obtain the
30 disclosure document required and does not have written
31 assurance from the transferee that the disclosure has been
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1 received, the broker shall advise the transferee in writing of
2 his or her rights to the disclosure. A licensed real estate
3 broker responsible for delivering disclosures under this
4 section shall maintain a record of the action taken to effect
5 compliance of the transaction.
6 (13) A transfer subject to this section may not be
7 invalidated solely because of the failure of any person to
8 comply with any provision of this section. However, any person
9 who willfully or negligently violates or fails to perform any
10 duty prescribed by any provision of this section shall be
11 liable in the amount of actual damages suffered by a
12 transferee.
13 (14)(a) As used in this section, the term "listing
14 agent" means an individual who has obtained a listing of
15 property of the kind in respect of which he or she is
16 authorized by law to act as an agent for compensation.
17 (b) As used in this section, the term "selling agent"
18 means an individual who acts in cooperation with a listing
19 agent and who sells, or finds and obtains a buyer for, the
20 property.
21 Section 2. This act shall take effect July 1, 2003.
22
23 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
24 Senate Bill 2018
25
26 Requires that a transferor or his or her agent make certain
disclosures with respect to the sale or transfer of real
27 property. Requires that property located within a flood hazard
area, an area with severe constraints for development, an area
28 having sinkhole activity, a wellhead protection area, a
priority wetland zone, a habitat conservation area, an airport
29 influence area, an enviromental site, or a radon gas zone be
identified by use of a Property Identification Disclosure
30 Statement. Provides requirements for the form. Requires that
third parties providing information for purposes of such
31 disclosures maintain a minimum of $20 million in insurance
protection. (See bill for details)
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