Florida Flood Disclosure Rules

Debary, Florida Flooding on Dogwood Trail after August 2008s Tropical Storm Fay

Florida Has No Statutory or Regulatory Flood Disclosure Rules

And 20 other states earn a failing grade on transparency, according to a new National Resources Defense Council rating of property rules.

There are few places to purchase a home in the U.S. that have a greater risk of flooding than on the coast of Florida. But sellers need not lose sleep over that. That’s because the Sunshine State doesn’t mandate disclosure of whether a property has previously flooded.

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Florida has no statutory or regulatory requirements for a seller to disclose a property's flood risks or past flood damages to a potential buyer. As such, Florida home buyers are greatly disadvantaged when it comes to learning of a home's past flood history of potential for future flooding.

However, Florida courts have held that, with some exceptions, a home seller must disclose any facts or conditions about the property that could have a substantial impact on its value or desirability and that others cannot easily see for themselves (see Johnson v. Davis, 480 So.2d625 (Fla. 1985)). Whether such a ruling would be applicable to all flood risks is unclear (see Nelson v Wiggs, 699 So. 2d 258 (Fla. Dist. Ct. App. 1997)).

Flooding in a Sanford, Florida neighborhood in September of 2017

And while Florida realtors have created a disclosure for for sellers to use, the form is voluntary and, as such, sellers do not have to provide it to a buyer.

In August 2008 Tropical Storm Fay dropped nearly 25-inches of rain over east central Florida flooding areas of Daytona Beach, Deltona, Debary, and Orange City that had seen flooding numerous times in previous storms.

The weak tropical storm turned residential streets into rivers and posh golf and country clubs into Atlantis-like submerged mini-cities.

Debary's Bouganvilla Avenue in summer 2008

Some 21 states have no rules requiring owners to reveal a property’s flood history, according to a newly updated rating by the Natural Resources Defense Council, a New York-based non-profit advocacy group. That’s down only one from 2018, when NRDC did its first disclosure report.

A makeshift dam was constructed along one of Debary's main thoroughfares in the summer of 2008, Highbanks Road, to hold back floodwaters from upscale communities built in what had once been wetlands.

“Too often policy changes only occur after a major disasters and that is not going to be good enough going forward,” said Joel Scata, a water and climate attorney with NRDC. “We need pre-emptive action on flood risk because climate change is increasing risk and the nation can’t afford to keep people in the dark.”

For would-be home buyers, no disclosure means there is often no way to gauge the true risk they are taking on.

Sunset at the Highbanks landing during a 2017 flood. The road and boat ramp disappear into the rising St. Johns River.

“homeowners are [too often] shocked years after a purchase because they didn't know their home carried flood risk,” said Matthew Eby, executive director of the First Street Foundation, a non-profit that is trying to make the impact of climate change more transparent for individual property owners. The foundation recently released maps estimating current and future financial risks to every residential property in the U.S.

Find Your Flood Factor

Flooding causes billions of dollars in damage in the U.S. every year and many of the costliest bills relate to properties that are built in flood prone areas that get damaged over and over again.

Many potential flooded properties exist around Deltona Florida's Lake Theresa and Lake Karnes

Nearly 30 percent of Florida is in a high-risk area, and that number is expected to increase over the coming decades as climate change causes sea levels to rise. But that hasn’t stopped the state from protecting its valuable real estate industry. New York is similarly friendly to sellers—for $500 it will allow them to avoid disclosing that a home is located in the 100-year floodplain, the NRDC says.

But even awareness of being in a floodplain is inadequate. That’s because each home has a unique risk based on factors such as the nature of the built environment—for example, whether there is a sea wall or salt marsh nearby that could blunt a storm surge.

Upscale Debary Golf and Country Club suffered some of the worst flooding in 2008

“Since so much flooding happens outside of the floodplain, you really need concrete details of each homeowner’s experience to understand flood risk,” said Scata. “And it is really only the seller that has the information.”

When NRDC released its inaugural ratings of state disclosure laws in 2018, 22 had failing grades. Since then NRDC said North Dakota, which experienced a flood, tightened regulations. A few other states that had only adequate regulations experienced bad damage and have since improved to earn a grade of “excellent.”

That was the case for Texas. It was hit by Hurricane Harvey in 2017, and the storm turned out to be one of the costliest in U.S. history. Now, sellers there must disclose if there has ever been water damage to a structure and if they have ever filed a claim for flood damage.

A "No Swimming" sign warns waders away from this flooded golf course in Debary, Florida (2008).

But Scata says that waiting for each state to experience their own Harvey is not wise. Instead, NRDC advocates that the National Flood Insurance Program, the federal program that writes 95 percent of residential flood policies, to “mandate that each state have an in depth disclosure law as a requirement.”

Fishing the flood on the St. Johns River, 2017.