“AS IS” Clause in a Property Contract & Home Inspection Company

Issue 1: Does an “As Is” Clause in a Contract under Florida law Include Termites?

Yes.  An “as is” clause in a contract under Florida law does not waive the duty a seller has to disclose to buyer facts materially affecting the value of the property and are not readily observable to the buyer.  Levy v. Creative Const. Services of Broward, Inc., 566 So. 2d 347 (Fla. 3d DCA 1990); Solorzano v. First Union Mortg. Corp., 896 So. 2d 847 (Fla. 4th DCA 2005); Rayner v. Wise Realty Co. of Tallahassee, 504 So. 2d 1361 (Fla. 1st DCA 1987); See Johnson v. Davis 80 So. 2d 625 (Fla. 1985).  To have a claim under Johnson, the buyer must prove (1) the seller knew of the defect, (2) the defect materially affects the value of the property, and (3) the defect was not readily observable.  Id.  However, if there was a problem that the seller thought had been solved previously, the seller does not have a duty to disclose.  Spitale v. Smith, 721 So. 2d 341, 345 (Fla. 2d DCA 1998) (where seller did not have duty to disclose of a roof leak the seller thought had been repaired and was unaware of the recurring problem).

Issue 2: Can we sue the home Inspection Company for Failure to Adequately Perform?

When purchasing a house, a wood-destroying organism inspection report is required.  See Florida Statute 482.226.  There could possibly be a recovery for damages under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).  FDUTPA only allows for recovery actual damages, not consequential damages.  Additionally, FDUTPA does not allow for the recovery of punitive damages.  Urling v. Helms Exterminators, Inc., 468 So. 2d 451, 1985.  A person can sue if there is evidence that the inspector was negligent in his duty.  Rayner v. Wise Realty Co. of Tallahassee, 504 So. 2d 1361, 1365 (Fla. 1st DCA 1987); McNease v. Bone, 448 So. 2d 1160 (Fla. 1st DCA 1984).  The caveat is that there may not be a recovery for damages if the client was informed of previous infestation at closing.  No-Risk Chem. Co., Inc. v. El-Kerdi, 453 So. 2d 482 (Fla. 2d DCA 1984).

EPGD Business Law is located in beautiful Coral Gables. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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Eric Gros-Dubois

Founding partner Eric Gros-Dubois established EPGD Business Law in 2013. With over a decade of experience expanding the firm and leading it to its current success, Eric now primarily manages the corporate division of EPGD. Given Eric’s educational background, holding both a JD and MBA, combined with his own unique experience of starting a business from scratch and growing it to a multi-million dollar firm, he brings a specialized and invaluable perspective to those seeking legal assistance for themselves and their businesses. Having now instilled his same values in our team of skilled corporate associates, Eric leads a firm that is always ready, willing, and equipped to handle any and every legal matter that a business owner may have.


*The following comments are not intended to be treated as legal advice. The answer to your question is limited to the basic facts presented. Additional details may heavily alter our assessment and change the answer provided. For a more thorough review of your question please contact our office for a consultation.

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