What Florida Sellers Must Disclose: Johnson v. Davis, the FD-1 Flood Form & the “As-Is” Myth
- Ed DiMarco MS, MA
- 4 days ago
- 5 min read
The quick answer: Florida sellers must disclose known facts that materially affect a home’s value and are not readily observable — a duty set by the Florida Supreme Court in Johnson v. Davis and unchanged by an “as-is” contract. Since October 2024, every residential sale also requires a completed FD-1 flood disclosure form at or before contract signing.
Key Takeaways
Johnson v. Davis (1985) is the backbone of Florida disclosure law: known, hidden, material defects must be disclosed — verbally promising “as-is” does not erase the duty.
The FD-1 flood disclosure (§689.302, Florida Statutes) became mandatory October 1, 2024, covering past flood insurance claims and federal flood aid.
Effective October 1, 2025, the form expanded: sellers must also disclose any flood damage during their ownership.
The flood rule covers all residential sales — condos and new construction included — but not rentals or commercial property.
Practical rule for Naples sellers: if you would want to know it as a buyer, write it down. Disclosure paper trails end lawsuits before they start.
Reviewed and current as of July 2026. Disclosure duties described here are statutory and case-law driven and change slowly; the flood-form requirements are cited to their effective dates. This article is general information, not legal advice.
Forty years ago, Florida real estate ran on caveat emptor — buyer beware. One Miami sinkhole dispute ended that era, and the state has been expanding the seller’s duty ever since, most recently with a flood-disclosure statute written after the state watched storm after storm produce surprised buyers. If you are selling a Naples home, here is exactly what the law asks of you, and why doing slightly more than it asks is the cheapest insurance you can buy.
Johnson v. Davis: The Rule That Runs Everything
In Johnson v. Davis (1985), the Florida Supreme Court held that a seller who knows of facts materially affecting the value of the property which are not readily observable and not known to the buyer has a duty to disclose them. Four elements matter: you knew, it is material, it is hidden, and the buyer did not know. Roof leaks that only show in summer storms, patched foundation cracks, unpermitted additions, a history of standing water in the lanai — all classic examples.
The “As-Is” Myth
“As-is” is the most misunderstood phrase in Florida contracts. An as-is contract controls repair obligations — it means the seller will not fix things and the buyer can walk during the inspection period. It does not cancel the Johnson v. Davis disclosure duty. A seller who knowingly conceals a latent material defect is exposed to a failure-to-disclose claim whether the contract said as-is or not. Sellers who plan to take a direct cash offer should hear the same advice: the buyer changes, the duty does not.
The FD-1 Flood Disclosure: What Changed in 2024 and 2025
Florida created §689.302 in 2024, requiring a completed flood disclosure form (FD-1) at or before the time the sales contract is executed. The original form covers two facts: whether you have filed flood insurance claims on the property, and whether you have received federal flood assistance (such as FEMA aid) to remediate flood damage. Effective October 1, 2025, the Legislature expanded it: sellers must now also disclose any flood damage during their ownership, claim or no claim.
Disclosure | Required by | Applies to |
|---|---|---|
Known hidden defects materially affecting value | Johnson v. Davis (Fla. 1985) case law | All residential sales, including as-is |
Flood claims & federal flood aid (form FD-1) | §689.302 F.S., eff. 10/1/2024 | All residential incl. condos & new construction |
Any flood damage during ownership | FD-1 expansion, eff. 10/1/2025 | Same scope; not rentals or commercial |
Common practice: full seller disclosure form | Not statutory — standard practice | Strongly recommended for every listing |
What Smart Naples Sellers Disclose Anyway
The statute is the floor, not the ceiling. In coastal Collier County, the disputes that actually reach lawyers cluster around water intrusion, roof age, prior insurance claims of any kind, unpermitted work, and polybutylene plumbing. Disclosing these in writing does two things: it kills the later he-said-she-said, and it signals to buyers — especially inspection-fatigued 2026 buyers — that the file is clean. Homes with organized disclosure packages negotiate from strength; surprises found by the buyer’s inspector negotiate from weakness. If you are weighing whether this market is worth entering at all, the should-you-sell-now analysis pairs with this guide.
Ed’s Take: What I’m Seeing in the Field
Sellers consistently overestimate what disclosure costs them and underestimate what concealment costs them. In my experience, the disclosed defect gets priced in once, quietly, at a few thousand dollars — the concealed one comes back after closing with an attorney attached. The FD-1 form made this concrete: flood history is now a checkbox, not a judgment call, and buyers are reading it closely in flood-priced 2026. The sellers doing this well treat disclosure as marketing — a thick, honest file next to the survey and the wind-mitigation report. My prediction: flood disclosure follows the path insurance did — within a few years, buyers will ask for the FD-1 before the first showing, and homes with clean flood files will carry a measurable premium in coastal zip codes.
Final Thoughts
Florida’s disclosure regime is strict, but it is also simple: write down what you know. The law only punishes concealment of what you knew and hid — it never punishes honesty. Build the file early, attach the FD-1, disclose past the minimum, and let the paper trail do the defending. A listing prepared this way is also simply easier to sell, which is why it is standard procedure in every 1% full-service listing I take. This article is general information, not legal advice — for a specific dispute or an unusual disclosure question, talk to a Florida real estate attorney.
Frequently Asked Questions
Does “as-is” mean I don’t have to disclose anything?
No. As-is controls repairs, not honesty. Known hidden defects that materially affect value must be disclosed under Johnson v. Davis regardless of contract type.
Is a written seller disclosure form required by Florida law?
The general disclosure duty comes from case law and does not mandate a specific form — but the FD-1 flood disclosure is a statutory written form, required at or before contract execution on every residential sale since October 2024.
What flood information must I disclose?
Three things: flood insurance claims you have filed on the property, federal flood assistance received, and — since October 1, 2025 — any flood damage during your ownership, whether or not you filed a claim.
Do condo and new-construction sellers file the FD-1 too?
Yes. The statute covers all residential real property transactions, including condominiums and new construction. Rentals and commercial transactions are outside its scope.
What happens if a seller fails to disclose?
A buyer who discovers a concealed material defect can pursue a failure-to-disclose claim seeking damages or, in some cases, rescission. Defense costs alone typically dwarf whatever the disclosure would have cost in negotiation.
Ed DiMarco is a Naples, Florida Realtor with Realty Hub offering full-service listings at a 1% fee and buyer representation that credits leftover buyer-agent compensation back at closing. He writes data-first guides to the Southwest Florida market at NaplesEd.com.
References
Florida Realtors — Florida Real Estate Disclosure Laws (legal library): floridarealtors.org
Florida Senate — HB 1049 (2024) analysis creating §689.302 F.S. flood disclosure: flsenate.gov
Florida Realtors — Florida Expands Flood Disclosures (Oct 2025 changes): floridarealtors.org
Berlin Patten Ebling — Florida’s New Flood Disclosure Requirements: berlinpatten.com
Nolo — Selling a Florida Home: Disclosure Obligations: nolo.com
