“We are throwing a Robert De Niro party. It should be pretty loud.” -Teddy Sanders, Neighbors. Now imagine that guy lives next door and every month it is Taxi Driver Tuesday or Meet the Parents Friday at full volume. If you decide to sell your house for reasons unrelated to your neighbor’s monthly shindigs, do you have to disclose your neighbor’s party habits to potential buyers? As it turns out, the answer to that question is not so simple.
In Florida, a seller of residential real estate has a duty to disclose facts materially affecting the value of the property that are not readily observable and are not known to the buyer. Requiring sellers of residential real estate to disclose unruly or nuisance neighbors is a slippery slope. One man’s dream neighbor is another man’s nightmare. The Florida legislature should codify into law that a nuisance neighbor is not a material fact that must be disclosed in a residential real estate transaction.
Nondisclosure of Material Facts and Johnson v. Davis
The seminal case in Florida involving a seller’s duty to disclose information about a residential property to the buyer in a transaction is Johnson v. Davis, 480 So. 2d 625 (Fla. 1982). In Johnson, the Florida Supreme Court determined that the doctrine of caveat emptor, or let the buyer beware, does not apply to residential transactions. The Court approved the rule that “[W]here the seller of a house knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.” The duty to disclose material facts includes fraudulent concealment.
Nuisance Neighbors and the Duty to Disclose
In the 30 years since Johnson v. Davis, numerous Florida courts have applied the duty to disclose material facts concept to various situations, including the flood-prone nature of the property, elevated radon levels, cracks in the pool, water treatment facilities, and building code violations. The duty to disclose is not limited to on-site conditions.
In recent years, upset buyers have attempted to extend Johnson v. Davis even further to a nuisance neighbor. At present, the Florida district courts of appeal have not addressed the issue of whether an unruly or nuisance neighbor constitutes a material fact that would trigger a seller’s duty to disclose under Johnson v. Davis. Moreover, there is no exact rule or formula for deciding when a neighbor’s noise rises to the level at which a court will grant relief on a nuisance claim. Rather, courts evaluate nuisance actions by considering the reasonableness of the use, as such use affects the… private rights of others… as determined from the facts and circumstances of the particular cases. This is a major issue because sellers should feel comfortable that after they sell their home, they will not be subject to litigation down the road by a buyer who is unhappy with their neighbors.
Expanding Johnson v. Davis to unruly or nuisance neighbors would be a slippery slope. An owner may not mind that his or her neighbor has friends over every Friday night for dinner until midnight. But that may bother a buyer. Another person may not have an issue with his neighbor’s pool equipment because the person is hard of hearing. But that may bother a buyer. This raises the issue of what is a fact that materially affects the value of the property that would need to be disclosed. Would a neighbor who has friends and family over on Sunday mornings, who park in the street before going to church, need to be disclosed? Would a neighbor who has a dog they leave in the backyard, who occasionally barks, need to be disclosed? Would a neighbor who throws a New Year’s Eve party once a year that lasts until one am need to be disclosed? Would a neighbor who screams due to a perceived medical condition when he takes out the trash once a week need to be disclosed? Would a neighbor who barbecues a few times a week, where you can smell the BBQ, need to be disclosed? The list is endless.
The issue of whether to disclose or not disclose is compounded by the fact that the materiality of a fact is to be determined objectively by focusing on the relationship between the undisclosed fact and the value of the property.
A person selling a home should not have to disclose issues with neighbors prior to selling their home. The legislature should act and codify a law that a nuisance neighbor is not a material fact that must be disclosed in a real estate transaction. The legislature has enacted statutes that address the duty to disclose requirements in Johnson v. Davis in other areas. For example, Fla. Stat. § 689.25 (2024) states that the fact that an occupant of real property is infected or has been infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome is not a material fact that must be disclosed in a real estate transaction. The statute also states that the fact that a property was, or was at any time suspected to have been, the site of a homicide, suicide, or death is not a material fact that must be disclosed in a real estate transaction. The legislature should enact a statute that adds nuisance neighbors to the exception list. This will provide sellers of real estate with certainty when selling their home without running the risk of liability for a Johnson v. Davis claim.
Conclusion
Selling one’s home is a major undertaking. Sellers must factor in sales price, commissions, moving to a new place, stress, storage, and negotiating with prospective purchasers. A seller should not have to worry about whether the seller must disclose every single issue concerning a neighbor that may or may not be a fact that materially affects the value of the property. The legislature should enact a law that states a nuisance neighbor is not a material fact that needs to be disclosed in a residential real estate transaction.