HB 0947

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 impacted by sinkhole activity, a
9	wellhead protection area, a priority wetland zone, a
10	habitat conservation area, an airport's environs, an
11	environmental hazard site, or a radon gas zone; providing
12	that the waiver of such requirements is against public
13	policy; providing certain exceptions; specifying the form
14	to be used as the Property Identification Disclosure
15	Statement; providing requirements for identifying
16	information that accompanies the disclosure statement;
17	providing requirements for delivery of the required
18	disclosure statement; providing a limitation with respect
19	to liability for errors, inaccuracy, or omissions;
20	requiring a third party that provides information with
21	respect to the disclosure statement to maintain a
22	specified amount of insurance protection; providing that
23	information updates are not required after delivery of the
24	required disclosures; requiring that disclosures be made
25	in good faith; providing that the act does not limit or
26	abridge 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 Zone "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 flood hazards which
66	includes the property.
67	2.  A person who is acting as an agent for a transferor of
68	real property that is located on soils with very severe
69	constraints for development, or the transferor, if he or she is
70	acting without an agent, shall disclose to any prospective
71	transferee the fact that the property is located on soils with
72	very severe constraints for development pursuant to maps issued
73	by the United States Department of Agriculture or other readily
74	available and officially adopted governmental maps and
75	information if:
76	a.  The transferor, or the transferor's agent, has actual
77	knowledge that the property is on soils with very severe
78	constraints for development; or
79	b.  Other readily available and officially adopted
80	governmental information exists regarding soils with very severe
81	constraints for development which includes the property.
82	3.  A person who is acting as an agent for a transferor of
83	real property that is located in an area impacted by sinkhole
84	activity, or the transferor, if he or she is acting without an
85	agent, shall disclose to any prospective transferee the fact
86	that the property is located in an area impacted by sinkhole
87	activity pursuant to readily available and officially adopted
88	governmental maps and information if:
89	a.  The transferor, or the transferor's agent, has actual
90	knowledge that the property is in an area impacted by sinkhole
91	activity; or
92	b.  Other readily available and officially adopted
93	governmental information exists regarding sinkhole activity
94	which includes the property.
95	4.  A person who is acting as an agent for a transferor of
96	real property that is located within a quarter of a mile of a
97	wellhead protection area, or the transferor, if he or she is
98	acting without an agent, shall disclose to any prospective
99	transferee the fact that the property is located within a
100	quarter of a mile of a wellhead protection area pursuant to maps
101	issued by the Department of Environmental Protection or a water
102	management district or other readily available and officially
103	adopted governmental maps and information if:
104	a.  The transferor, or the transferor's agent, has actual
105	knowledge that the property is located within a quarter of a
106	mile of a wellhead protection area; or
107	b.  Other readily available and officially adopted
108	governmental information exists regarding wellhead protection
109	areas which includes the property.
110	5.  A person who is acting as an agent for a transferor of
111	real property that is located in a priority wetland zone, or the
112	transferor, if he or she is acting without an agent, shall
113	disclose to any prospective transferee the fact that the
114	property is located in a priority wetland zone pursuant to maps
115	issued by the Fish and Wildlife Conservation Commission or other
116	readily available and officially adopted governmental maps and
117	information if:
118	a.  The transferor, or the transferor's agent, has actual
119	knowledge that the property is located in a priority wetland
120	zone; or
121	b.  Other readily available and officially adopted
122	governmental information exists regarding priority wetland zones
123	which includes the property.
124	6.  A person who is acting as an agent for a transferor of
125	real property that is located in a strategic habitat
126	conservation area, or the transferor, if he or she is acting
127	without an agent, shall disclose to any prospective transferee
128	the fact that the property is located in a strategic habitat
129	conservation area pursuant to maps issued by the Fish and
130	Wildlife Conservation Commission or other readily available and
131	officially adopted governmental maps and information if:
132	a.  The transferor, or the transferor's agent, has actual
133	knowledge that the property is located in a strategic habitat
134	conservation area; or
135	b.  Other readily available and officially adopted
136	governmental information exists regarding strategic habitat
137	conservation areas which includes the property.
138	7.  A person who is acting as an agent for a transferor of
139	real property that is located within 2 statute miles of the
140	nearest point of the nearest runway at any airport, or the
141	transferor, if he or she is acting without an agent, shall
142	disclose to any prospective transferee the fact that the
143	property is located within 2 statute miles of the nearest point
144	of the nearest runway at any airport if:
145	a.  The transferor, or the transferor's agent, has actual
146	knowledge that the property is located within 2 statute miles of
147	the nearest point of the nearest runway at any airport; or
148	b.  The local jurisdiction has maps that identify
149	properties that are located within 2 statute miles of the
150	nearest point of the nearest runway at any airport.
151	8.  A person who is acting as an agent for a transferor of
152	real property that is located within a quarter of a mile of an
153	environmental hazard site, limited to filed governmental
154	reports, or the transferor, if he or she is acting without an
155	agent, shall disclose to any prospective transferee the fact
156	that the property is located within a quarter of a mile of an
157	environmental hazard site, including leaking underground storage
158	tanks, solid waste landfills, incinerators or transfer stations,
159	national priority list sites, or CERCLIS sites under review by
160	the United States Environmental Protection Agency, if:
161	a.  The transferor, or the transferor's agent, has actual
162	knowledge that the property is located within a quarter of a
163	mile of an environmental hazard site; or
164	b.  Other readily available and officially adopted
165	governmental information exists regarding environmental hazard
166	sites which includes the property.
167	9.  A person who is acting as an agent for a transferor of
168	real property that is located within a mapped radon gas
169	potential zone, or the transferor, if he or she is acting
170	without an agent, shall disclose to any prospective transferee
171	the fact that the property is located within a mapped radon gas
172	potential zone pursuant to maps issued by the United States
173	Environmental Protection Agency or other readily available and
174	officially adopted governmental maps and information if:
175	a.  The transferor, or the transferor's agent, has actual
176	knowledge that the property is located in a mapped radon gas
177	potential zone; or
178	b.  Other readily available and officially adopted
179	governmental information exists regarding potential radon gas
180	which includes the property.
181	(c)  Any waiver of the requirements of this section is void
182	as against public policy.
183	(2)(a)  This section does not apply to the following
184	transfers:
185	1.  Transfers pursuant to court order, including, but not
186	limited to, transfers ordered by a probate court in
187	administration of an estate, transfers pursuant to a writ of
188	execution, transfers by any foreclosure sale, transfers by a
189	trustee in bankruptcy, transfers by eminent domain, and
190	transfers resulting from a decree for specific performance.
191	2.  Transfers to a mortgagee by a mortgagor or successor in
192	interest who is in default and transfers to a beneficiary of a
193	deed of trust by a trustor or successor in interest who is in
194	default.
195	3.  Transfers by a fiduciary in the course of the
196	administration of a decedent's estate, guardianship,
197	conservatorship, or trust.
198	4.  Transfers from one coowner to one or more other
199	coowners.
200	5.  Transfers made to a spouse or to a person or persons in
201	the lineal line of consanguinity of one or more of the
202	transferors.
203	6.  Transfers between spouses resulting from a judgment of
204	dissolution of marriage or of legal separation of the parties or
205	from a property settlement agreement incidental to that
206	judgment.
207	7.  Transfers by sale, resale, exchange, or installment
208	land sales contract of any manufactured mobile home, mobile home
209	park, or residential manufactured building.
210	(b)  Transfers not subject to this section may be subject
211	to other disclosure requirements. In transfers that are not
212	subject to this section, agents may make required disclosures in
213	a separate writing.
214	(3)(a)  The disclosures required by this section are set
215	forth in, and shall be made on a copy of, the following Property
216	Identification Disclosure Statement:
217
218	PROPERTY IDENTIFICATION DISCLOSURE STATEMENT
219
220	This statement applies to the following property:
221	_____________________
222
223	The transferor and his or her agent(s) disclose the following
224	information with the knowledge that even though this is not a
225	warranty, prospective transferees may rely on this information
226	in deciding whether and on what terms to purchase the subject
227	property.
228
229	Transferor hereby authorizes any agent(s) representing any
230	principal(s) in this action to provide a copy of this statement
231	to any person or entity in connection with any actual or
232	anticipated sale of the property.
233
234	The following are representations made by the transferor and his
235	or her agent(s) based on their knowledge and official maps and
236	information prepared by the state and federal governments. This
237	information is a disclosure and is not intended to be part of
238	any contract between the transferee and transferor.
239
240	THIS REAL PROPERTY LIES WITHIN THE FOLLOWING AREA(S):
241
242	(1)  A SPECIAL FLOOD HAZARD AREA (Any type Zone "A" or Zone
243	"V") designated by the Federal Emergency Management Agency.
244
245	Yes _____   No _____   Do not know and information not available
246	_____   Pending _____
247
248	(2)  ON SOILS WITH VERY SEVERE CONSTRAINTS FOR DEVELOPMENT
249	pursuant to maps issued by the United States Department of
250	Agriculture or other readily available and officially adopted
251	governmental maps and information.
252
253	Yes _____   No _____   Do not know and information not available
254	_____   Pending _____
255
256	(3)  AN AREA IMPACTED BY SINKHOLE ACTIVITY pursuant to
257	readily available and officially adopted governmental maps and
258	information.
259
260	Yes _____   No _____   Do not know and information not available
261	_____   Pending _____
262
263	(4)  WITHIN A QUARTER OF A MILE OF A WELLHEAD PROTECTION
264	AREA pursuant to maps issued by the Department of Environmental
265	Protection or a water management district or other readily
266	available and officially adopted governmental maps and
267	information.
268
269	Yes _____   No _____   Do not know and information not available
270	_____   Pending _____
271
272	(5)  A PRIORITY WETLAND ZONE pursuant to maps issued by the
273	Fish and Wildlife Conservation Commission or other readily
274	available and officially adopted governmental maps and
275	information.
276
277	Yes _____   No _____   Do not know and information not available
278	_____   Pending _____
279
280	(6)  A STRATEGIC HABITAT CONSERVATION AREA pursuant to maps
281	issued by the Fish and Wildlife Conservation Commission or other
282	readily available and officially adopted governmental maps and
283	information.
284
285	Yes _____   No _____   Do not know and information not available
286	_____   Pending _____
287
288	(7)  WITHIN 2 STATUTE MILES OF THE NEAREST POINT OF THE
289	NEAREST RUNWAY AT ANY AIRPORT.
290
291	Yes _____   No _____   Do not know and information not available
292	_____   Pending _____
293
294	(8)  WITHIN A QUARTER OF A MILE OF AN ENVIRONMENTAL HAZARD
295	SITE, including leaking underground storage tanks, solid waste
296	landfills, incinerators or transfer stations, national priority
297	list sites, and/or CERCLIS sites under review by the United
298	States Environmental Protection Agency.
299
300	Yes _____   No _____   Do not know and information not available
301	_____   Pending _____
302
303	(9)  WITHIN A MAPPED RADON GAS POTENTIAL ZONE pursuant to
304	maps issued by the United States Environmental Protection Agency
305	or other readily available and officially adopted governmental
306	maps and information.
307
308	Yes _____   No _____   Do not know and information not available
309	_____   Pending _____
310
311	THESE ZONES MAY LIMIT YOUR ABILITY TO DEVELOP THE REAL PROPERTY,
312	TO OBTAIN INSURANCE, OR TO RECEIVE ASSISTANCE AFTER A DISASTER.
313
314	THE MAPS AND INFORMATION ON WHICH THESE DISCLOSURES ARE BASED
315	ARE ESTIMATES WHERE THE APPLICABLE ZONES AND PROTECTED LANDS
316	EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER A PROPERTY
317	WILL BE AFFECTED BY A NATURAL OR ENVIRONMENTAL DISASTER.
318	TRANSFEREE(S) AND TRANSFEROR(S) MAY WISH TO OBTAIN PROFESSIONAL
319	ADVICE REGARDING THESE AND OTHER HAZARDS AND PROTECTION ZONES
320	THAT MAY AFFECT THE PROPERTY.
321
322	Transferor represents that the information herein is true and
323	correct to the best of the transferor's knowledge as of the date
324	signed by the transferor.
325
326	Signature of Transferor:     Date:________
327
328	Signature of Transferor:     Date:________
329
330	Agent represents that the information herein is true and correct
331	to the best of the agent's knowledge as of the date signed by
332	the agent.
333
334	Signature of Transferor's Agent:     Date:________
335
336	Signature of Transferor's Agent:     Date:________
337
338	Transferee represents that he or she has read and understands
339	this document.
340
341	Signature of Transferee:     Date:________
342
343	Signature of Transferee:     Date:________
344
345	(b)  If a map or accompanying information is not of
346	sufficient accuracy or scale that a reasonable person can
347	determine whether the subject real property is included in an
348	applicable area, the transferor or transferor's agent shall mark
349	"Yes" on the Property Identification Disclosure Statement. The
350	transferor or transferor's agent may mark "No" on the Property
351	Identification Disclosure Statement if he or she attaches a
352	report prepared pursuant to paragraph (5)(c) which verifies that
353	the property is not in the applicable zone. This paragraph does
354	not limit or abridge any existing duty of the transferor or the
355	transferor's agents to exercise reasonable care in making a
356	determination under this subsection.
357	(c)  If the Federal Emergency Management Agency has issued
358	a Letter of Map Revision confirming that a property is no longer
359	within a special flood hazard area, the transferor or
360	transferor's agent may mark "No" on the Property Identification
361	Disclosure Statement regardless of whether the map has been
362	updated.
363	(d)  If the Federal Emergency Management Agency has issued
364	a Letter of Map Revision confirming that a property is within a
365	special flood hazard area and the location of the letter has
366	been posted, the transferor or transferor's agent shall mark
367	"Yes" on the Property Identification Disclosure Statement
368	regardless of whether the map has been updated.
369	(4)(a)  The transferor of any real property subject to this
370	section shall deliver to the prospective transferee the written
371	statement required by this section, as follows:
372	1.  In the case of a sale, as soon as practicable before
373	transfer of title.
374	2.  In the case of transfer by a real property sales
375	contract or by a lease together with an option to purchase, or a
376	ground lease coupled with improvements, as soon as practicable
377	before execution of the contract. For the purpose of this
378	subparagraph, "execution" means the making or acceptance of an
379	offer.
380	(b)  The transferor shall indicate compliance with this
381	section either on the receipt for deposit, the real property
382	sales contract, the lease, or any addendum attached thereto or
383	on a separate document.
384	(c)  If any disclosure, or any material amendment of any
385	disclosure, required to be made pursuant to this section is
386	delivered after the execution of an offer to purchase, the
387	prospective transferee shall have 3 days after delivery in
388	person or 5 days after delivery by deposit in the mail to
389	terminate his or her offer by delivery of a written notice of
390	termination to the transferor or the transferor's agent.
391	(5)(a)  Neither the transferor nor any listing or selling
392	agent shall be liable for any error, inaccuracy, or omission of
393	any information delivered pursuant to this section if the error,
394	inaccuracy, or omission was caused by inaccurate or incomplete
395	information provided by public agencies to the transferor,
396	listing or selling agent, or other persons specified in
397	paragraph (c) and if ordinary care was exercised in obtaining
398	and transmitting the information.
399	(b)  The delivery of any information required to be
400	disclosed by this section to a prospective transferee by a third
401	party providing information required to be disclosed pursuant to
402	this section shall be deemed to comply with the requirements of
403	this section and shall relieve the transferor or any listing or
404	selling agent of any further duty under this section with
405	respect to that item of information.
406	(c)  The delivery of a report or opinion prepared by a
407	licensed engineer, land surveyor, or expert in locating the
408	applicable zones on readily available and officially adopted
409	governmental maps and information concerning matters within the
410	scope of the professional's license or expertise is sufficient
411	compliance for application of the exemption provided by
412	paragraphs (a) and (b) if the information is provided to the
413	prospective transferee pursuant to a request therefor, whether
414	written or oral. In responding to that request, an expert may
415	indicate, in writing, an understanding that the information
416	provided will be used in fulfilling the requirements of
417	subsection (3) and, if so, shall indicate the required
418	disclosures, or parts thereof, to which the information being
419	furnished is applicable. If that statement is furnished, the
420	expert is not responsible for any items of information, or parts
421	thereof, other than those expressly set forth in the statement.
422	(d)  A third party providing the information on behalf of
423	the transferor and the transferor's agent fulfilling the
424	requirements of subsection (3) to be disclosed by this section
425	shall maintain a minimum of $20 million of insurance protection
426	to protect the transferor and the transferor's agent for any
427	errors or omissions made by the third party.
428	(6)(a)  After a transferor and his or her agent comply with
429	subsection (3), they are relieved of further duty under this
430	section with respect to those items of information. The
431	transferor and his or her agent are not required to provide
432	notice to the prospective transferee if the information provided
433	subsequently becomes inaccurate as a result of any governmental
434	action, map revision, changed information, or other act or
435	occurrence unless the transferor or the transferor's agent has
436	actual knowledge that the information has become inaccurate.
437	(b)  Neither the transferor nor any listing or selling
438	agent shall be required to update information disclosed in
439	accordance with this section subsequent to the delivery of the
440	required disclosures to the prospective transferee.
441	(7)  Each disclosure required by this section and each act
442	that may be performed in making the disclosure shall be made in
443	good faith. For purposes of this section, "good faith" means
444	honesty in fact in the conduct of the transaction.
445	(8)  The specification of items for disclosure in this
446	section does not limit or abridge any obligation for disclosure
447	created by any other provision of law or that may exist in order
448	to avoid fraud, misrepresentation, or deceit in the transfer
449	transaction. The Legislature does not intend to affect the
450	existing obligations of the parties to a real estate contract,
451	or their agents, or to disclose any fact materially affecting
452	the value and desirability of the property, including, but not
453	limited to, the physical condition of the property and
454	previously received reports of physical inspection.
455	(9)  Any disclosure made pursuant to this section may be
456	amended in writing by the transferor or his or her agent, but
457	the amendment shall be subject to subsection (4).
458	(10)  Delivery of disclosures required by this section
459	shall be by personal delivery or mail to the prospective
460	transferee. For the purposes of this section, delivery to the
461	spouse of a prospective transferee shall be deemed delivery to
462	the prospective transferee, unless provided otherwise by
463	contract.
464	(11)  No person or entity, other than a real estate
465	licensee licensed in this state and acting in the capacity of an
466	escrow agent for the transfer of real property subject to this
467	section, shall be deemed the agent of the transferor or
468	prospective transferee for purposes of the disclosure
469	requirements of this section unless the person or entity is
470	empowered to so act by an express written agreement to that
471	effect. The extent of that agency shall be governed by the
472	written agreement.
473	(12)(a)  If more than one licensed real estate broker is
474	acting as an agent in a transaction subject to this section, the
475	broker who has obtained the offer made by the prospective
476	transferee shall, except as otherwise provided in this section,
477	deliver the disclosure required by this section to the
478	prospective transferee unless the transferor has given other
479	written instructions for delivery.
480	(b)  If a licensed real estate broker responsible for
481	delivering the disclosure under this section cannot obtain the
482	disclosure document required and does not have written assurance
483	from the prospective transferee that the disclosure has been
484	received, the broker shall advise the prospective transferee in
485	writing of his or her rights to the disclosure. A licensed real
486	estate broker responsible for delivering disclosures under this
487	section shall maintain a record of the action taken to effect
488	compliance of the transaction.
489	(13)  A transfer subject to this section may not be
490	invalidated solely because of the failure of any person to
491	comply with any provision of this section. However, any person
492	who willfully or negligently violates or fails to perform any
493	duty prescribed by any provision of this section shall be liable
494	in the amount of actual damages suffered by a transferee.
495	(14)(a)  As used in this section, the term "listing agent"
496	means an individual who has obtained a listing of property of
497	the kind in respect of which he or she is authorized by law to
498	act as an agent for compensation.
499	(b)  As used in this section, the term "selling agent"
500	means an individual who acts in cooperation with a listing agent
501	and who sells, or finds and obtains a buyer for, the property.
502	Section 2.  This act shall take effect July 1, 2004.

CODING: Words stricken are deletions; words underlined are additions.