Found Termites After Closing on a Florida Home: What Must Be Proven?

A Florida home seller generally must disclose known facts that materially affect residential property value when those facts are not readily observable and are not known to the buyer. A buyer who discovers termites after closing still must prove the seller's actual knowledge, materiality, lack of ready observability, nondisclosure, causation, and damages. The inspection report, pest-control history, photographs, expert findings, prior quotes, contracts, and repair chronology are usually central.

The Florida Seller-Disclosure Rule

In Johnson v. Davis, the Florida Supreme Court held that a home seller who knows facts materially affecting the property's value that are not readily observable and not known to the buyer has a duty to disclose them. The rule applies to new and used residential property.

Later decisions emphasize that the buyer must prove the seller's actual knowledge. A “should have known” theory is not enough under Johnson. Knowledge may be proved through competent circumstantial evidence, but the seller is not automatically a guarantor of the home's condition. Jensen v. Bailey, 76 So. 3d 980 (Fla. 2d DCA 2011).

An “As Is” Contract Does Not Automatically End the Inquiry

An “as is” clause commonly places repair and condition risk on the buyer after inspection, but Florida appellate courts have held that an as-is residential sale does not waive the Johnson duty to disclose known hidden defects. Contract language, inspection rights, disclosures, buyer knowledge, and reliance still matter. Solorzano v. First Union Mortgage Corp., 896 So. 2d 847 (Fla. 4th DCA 2005).

The buyer should therefore avoid two extremes: assuming the “as is” clause defeats every claim, or assuming that the clause has no effect. It may affect warranties, inspection decisions, reliance, remedies, and defenses even when it does not erase a duty to disclose known hidden defects.

What Must Be Proven in a Termite Case?

The Condition Existed Before Closing

A current infestation, old damage, and a prior treatment history are different facts. An expert should address species, activity, extent, age or duration indicators, treatment evidence, concealed damage, and whether the condition likely predated closing. Avoid asking an expert to make legal conclusions about fraud.

The Seller Actually Knew Relevant Facts

Evidence may include prior pest-control contracts, renewal notices, inspection reports, invoices, treatment stickers, repair estimates, contractor communications, insurance claims, photographs, prior disclosures, and testimony. A history of repeated treatment or substantial repair discussions may support an inference of knowledge; a single old treatment does not necessarily prove knowledge of the later-discovered condition.

Florida cases have involved disputes over whether sellers accurately disclosed repeated termite activity and treatment. The analysis remains fact-specific and should focus on what the seller knew at the time of contracting. Hinton v. Brooks, 820 So. 2d 325 (Fla. 5th DCA 2001).

The Condition Materially Affected Value

Materiality may be shown through structural repair cost, treatment needs, compromised building components, loss of use, diminished value, lender or insurer consequences, or other evidence. Minor evidence of insects or an inexpensive treatment may not support the same claim as extensive concealed structural damage.

The Condition Was Not Readily Observable and Was Unknown

The inspection report, access limitations, seller's belongings, finishes, recent paint or patchwork, inaccessible attic or crawlspace areas, and visible signs all matter. Readily observable does not necessarily mean that a buyer personally noticed the issue; the question can involve what was reasonably apparent under the circumstances and what specialized inspection was performed.

The Nondisclosure Caused Provable Damages

The buyer should connect each requested loss to the undisclosed condition. Treatment, structural repair, testing, temporary relocation, storage, engineering, permit work, and diminished value may require different proof. Avoid double counting or claiming expenses that would have been incurred regardless of the nondisclosure.

The WDO Report Is Important, but It Is Not a Guarantee

When a licensed pest-control operator performs a wood-destroying-organism inspection for a real-estate transaction and charges a fee or provides a requested written report, Florida law requires a prescribed report. It must identify inaccessible areas, visible evidence of prior treatment or infestation, the organisms present, and visible damage. Fla. Stat. § 482.226.

The statute expressly states that the inspection report is not a guarantee of the absence of wood-destroying organisms or damage unless the report specifically provides such a guarantee. The report's scope, limitations, inaccessible areas, timing, and compliance with current administrative rules should be reviewed. Fla. Admin. Code R. 5E-14.142.

A Termite Contract May Cover Less Than Expected

Treatment contracts may be retreatment-only, repair-and-retreatment, or provide no warranty. Florida requires the first page of a wood-destroying-organism treatment contract to state the type of coverage and identify disclaimers, limitations, conditions, and exclusions in bold. Fla. Stat. § 482.227.

Species, treatment method, renewal status, transfer requirements, inspection conditions, moisture exclusions, inaccessible areas, and damage caps can change the coverage analysis. “Termite warranty” is not a complete description of the contract.

Who May Be Responsible?

• Seller: for known material facts not readily observable and not disclosed
• Real estate licensee: for known material facts within the duties imposed by the brokerage relationship
• WDO inspector or pest company: depending on statutory duties, report findings, inspection scope, and contract terms
• Home inspector: depending on the inspection agreement, standards, visible indicators, exclusions, and causation
• Contractor or prior repair provider: when work concealed damage, failed to address it, or generated knowledge evidence

Florida statutes require transaction brokers, single agents, and licensees with no brokerage relationship to disclose known facts that materially affect residential property value and are not readily observable, subject to the statute's relationship-specific provisions. Fla. Stat. § 475.278.

Immediate Evidence and Mitigation Steps

• 1. Photograph and video visible insects, wings, frass, galleries, damaged wood, paint or patchwork, and affected rooms before cleanup.
• 2. Obtain a written report identifying the organism, activity, damage, access limitations, and recommended treatment and repair.
• 3. Preserve the seller disclosure, contract, addenda, listing, inspection agreements, home-inspection report, WDO report, pest contracts, and closing file.
• 4. Request prior pest-control and contractor records through appropriate lawful channels.
• 5. Provide notice and a reasonable inspection opportunity before destructive remediation when safe and practical.
• 6. Address active infestation, structural safety, moisture, and health concerns without unnecessary delay.
• 7. Keep removed materials, samples, photographs, invoices, and a date-by-date chronology when practical.

Frequently Asked Questions

Does finding termites shortly after closing prove the seller knew?

No. Timing can support investigation, but actual knowledge still must be proved through direct or competent circumstantial evidence. The condition's age, prior treatments, visible evidence, repair history, and communications may be important.

Can the buyer sue if the property was sold “as is”?

Potentially. An as-is clause does not automatically waive the Johnson duty to disclose known hidden defects in a residential sale, but the contract, inspection rights, buyer knowledge, and claimed remedy remain important.

Is the WDO company responsible because the report was clear?

Not automatically. Florida's required WDO report is not a guarantee of absence unless it expressly says otherwise. The inspection standard, inaccessible areas, visible evidence, report statements, and contract must be evaluated.

Should treatment begin immediately?

Active infestation and structural risk should not be ignored. Document first when possible, provide notice and an inspection opportunity when practical, and use licensed professionals. Emergency work can proceed with careful documentation.

What if prior quotes show the seller received a termite estimate?

A prior quote can be significant if it is authenticated and tied to the property, seller, condition, and relevant time. Its weight depends on what it described, who received it, and whether later treatment or repair changed the condition.

Speak With a Florida Attorney About the Dispute

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A termite nondisclosure dispute often requires coordinated review of the sale contract, disclosures, WDO report, pest contracts, inspection limitations, expert findings, prior treatment records, and repair evidence. Botwin Law Firm can evaluate those materials and help identify the legally and economically realistic next step.

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