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