Selling a House in Florida

Selling a house is one of the most significant legal transactions you'll ever participate in. It's important to know your legal rights and understand the process.

Working With a Real Estate Agent

In Florida, real estate agents have what's called a "fiduciary duty" to the home seller, if they are acting as the seller's agent in a transaction, and not the buyer's. It is also possible in Florida for real estate agents to act as a transaction broker, in which they provide a limited form of representation to both the seller and the buyer.

In Florida, this means that the agents are held by law to owe specific duties to the person who they are representing, in this case the seller. In addition to duties or obligations that are stated in a listing agreement or other contract, a fiduciary's duties include:

• Dealing honestly and fairly
• Loyalty
• Confidentiality
• Obedience
• Disclosure
• Accounting
• Skill, care and diligence
• Presenting all offers and counteroffers in a timely manner

Under state law, a seller must disclose the following potential house defects:

• Apparent defects
• Material defects which are defects, including any property damage, malfunctions of major systems and environmental hazards affecting the condition of a home, that are not readily visible to the buyer

To protect families from exposure to lead from paint, dust, and soil, Congress passed the Residential Lead-Based Paint Hazard Reduction Act of 1992. Under this law, anyone selling a house that was built before 1978 must notify potential buyers of a possible lead problem.

Purchase Agreements

When you've got a serious buyer, you'll receive a written offer to purchase your home, which is called a sales agreement or a purchase and sale agreement in Florida. You won't have very long to decide whether or not to take the offer or propose a counteroffer, so it's important to be informed ahead of time.

Common counter-proposal items include:

• A higher purchase price
• A higher deposit
• Giving buyer less time to remove contingencies
• Excluding certain items from the sale
• Providing you move in time to vacate the house after the sale is closed
• A clause making it a contingency that your attorney approve the contract
• A "liquidated damages clause" that details how much money the buyer will owe you if the buyer backs out of the deal for reasons other than the contingencies listed in the contract

Legal Title Issues

Your real estate Florida real estate lawyer or title company will investigate the legal title of the property you want to sell, and may find issues you'll need to understand.

In Florida for example, an implied easement arising from preexisting use is not recognized unless there has been a prior grant of an easement in a valid document that is too ambiguous to create an express easement. An implied easement exists where a person grants lands to which there is no accessible right-of-way except over her or his land, or retains land that is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of accessing the property, and the easement egress is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved.

The property you're interested in may also be subject to a "lien," a charge on the property to satisfy a debt or other obligation owed by the current owner of the property that has been recorded in the public records.

In Florida, liens on a piece of property may include:

• Construction liens
• Tax liens
• Mechanics lien
• Unpaid federal and state tax liens
• Unpaid child support

Closing Costs

In Florida, you may need to pay for the following charges called " closing costs"-at the time you sell your home:

• Satisfying the remaining balance on loan (if house not paid in full)
• Transfer taxes
• Documentary Stamps on the Deed
• Title insurance
• Property taxes (prorated)
• Broker's commission
• Negotiating Closing Costs
• Home Inspection

Specific Performance

In Florida, a seller who agrees to sell a particular property must do so unless the buyer fails to meet all the terms of the purchase agreement. This is called "specific performance." If you have second thoughts on a particular sale, you'll want to immediately contact an attorney.