Florida Real Estate Disclosure Failure Damages Calculator

How this calculator works

Florida is a "duty to disclose" state for residential real-estate transactions. The Florida Supreme Court abrogated the old caveat emptor ("buyer beware") rule in Johnson v. Davis, 480 So.2d 625 (Fla. 1985), and replaced it with an affirmative common-law duty: a residential seller must disclose to the buyer any facts materially affecting the value or desirability of the property that are not readily observable and are not known to the buyer. The duty applies to every Florida residential real-estate transaction regardless of whether the parties used a standard form contract or a bespoke one. This calculator gives a buyer or buyer's counsel a planning-stage estimate of the damages recoverable on a post-closing disclosure-failure claim, together with a four-element claim-viability verdict and a statute-of-limitations status check.

The five headline outputs:

1. Estimated damages — the greater of repair cost or post-disclosure market diminution (the Florida "benefit of the bargain" measure), plus expected attorney's fees.
2. Compensatory damages narrative — which of the two competing measures controls and why.
3. Johnson v. Davis claim-viability verdict — claim-viable, claim-marginal, or claim-not-viable on the four-element test.
4. F.S. § 95.11(3) statute-of-limitations status — timely, borderline under the Florida discovery rule, or time-barred.
5. Recommendation — file, file a demand letter and develop discovery, or do not file on the current record.

The four Johnson v. Davis elements

The buyer must prove four elements by a preponderance of the evidence to recover on a Florida residential disclosure-failure claim:

• Element 1 — the defect existed at the time of sale. Usually implicit on a post-closing-discovery claim: the defect typically predates the closing by its physical nature (a roof leak, a foundation crack, a sinkhole, prior mold remediation, hidden plumbing or electrical defects). The calculator treats this element as supported when the user is running it — the user is alleging post-closing discovery of a pre-existing defect.
• Element 2 — the seller knew or should have known of the defect. Actual or constructive knowledge at the time of sale. Florida courts find constructive knowledge where the defect was so apparent in the seller's daily use of the property that the seller necessarily knew (buckets in the attic catching a roof leak; a prior insurance claim for sinkhole activity; prior repair invoices in the seller's records; a contractor's report previously delivered to the seller). Element 2 is the most commonly-contested element in practice; plaintiff counsel develops it through prior repair invoices, prior insurance-claim records, prior contractor reports, neighbor interviews, and (where available) a deposition of the listing agent.
• Element 3 — the defect materially affected the value or desirability of the property. Materiality is established when a reasonable buyer would have negotiated a price reduction or walked away had the defect been disclosed pre-closing. Florida courts treat structural, roof, mold, sinkhole, and radon defects as material as a matter of law in most cases; cosmetic issues and inexpensive deferred maintenance are typically not material.
• Element 4 — the defect was not readily observable to the buyer. Latent defects — defects requiring destructive testing or specialized expertise to discover — satisfy this element. A defect visible on a Florida home-inspection report obtained pre-closing typically defeats this element (the buyer is on notice). The calculator's claim-viability verdict requires all four elements supported on the input record for a "viable" verdict; three of four is "marginal" (one element worth developing in discovery); two or fewer is "not viable" (likely summary-judgment dismissal).

How damages are measured

Florida uses the "benefit of the bargain" measure: the greater of (a) the actual cost to repair or remediate the defect, or (b) the post-disclosure diminution in market value attributable to the defect. Plaintiff counsel pleads both theories in the alternative and presents whichever produces the larger recovery at trial.

• Repair cost controls in the typical roof, plumbing, electrical, HVAC, or pool case, where the post-repair property is functionally identical to the as-disclosed property and the market does not separately discount it.
• Market diminution controls in stigmatized-property cases — mold, sinkhole, prior fire, prior flood, prior remediated environmental contamination — where post-disclosure buyers continue to discount the property even after remediation. The discount can be substantial: Florida brokerage reporting on stigmatized-property sales shows post-disclosure transaction-price discounts of 20 to 40 percent on sinkhole-disclosed parcels and 10 to 25 percent on mold-history parcels relative to a comparable property without the disclosure.

To the compensatory measure the calculator adds expected attorney's fees as a separate line item. Attorney's fees are recoverable under the prevailing-party fee clause in the Florida Realtors / Florida Bar standard contract — the contract used in the overwhelming majority of Florida residential transactions. If the parties used a non-standard contract without such a clause, fees may not be recoverable.

Emotional-distress damages are NOT recoverable

Under Florida's economic-loss rule articulated in Indemnity Ins. Co. of N. America v. American Aviation, Inc., 891 So.2d 532 (Fla. 2004), a plaintiff who suffers only economic damages from a contract or quasi-contract claim cannot recover tort-based emotional-distress damages. A Johnson v. Davis disclosure-failure claim is, in practice, a pure economic-loss claim — the buyer suffered a diminution in the value of a bargained-for asset — and is therefore subject to the rule. Limited exceptions exist for cases involving physical impact, intentional infliction, or wrongful death; the run-of-the-mill nondisclosure case does not qualify. The calculator does not include an emotional-distress damages line item.

The 4-year statute of limitations

Under F.S. § 95.11(3), Florida tort claims (including Johnson v. Davis disclosure-failure claims) are subject to a 4-year statute of limitations. The Florida discovery rule typically runs the clock from when the buyer knew or should have known of the defect, not from the closing date itself — so a transaction more than 4 years old may still be timely if the buyer can credibly establish the defect was not discovered (and could not reasonably have been discovered) until within the last 4 years.

The calculator's statute-of-limitations status reads off three bands measured from the closing date:

• At or below 4 years — timely. The claim is within the limitations window measured from closing. Plaintiff should still file as soon as practicable; stale claims invite laches and waiver defenses even when statutorily timely.
• Between 4 and 5 years — borderline. Outside the 4-year window measured from closing but potentially within the window measured from the discovery date under the discovery rule. Plaintiff must plead the discovery-rule application explicitly and prepare to defeat a limitations affirmative defense on summary judgment. Move quickly; an extended discovery-date theory is fact-intensive and benefits from prompt action.
• Above 5 years — generally time-barred. Limited exceptions exist for fraudulent concealment under the doctrine of equitable estoppel, but these are narrowly applied. Consult Florida real-estate counsel on whether any tolling theory applies before filing.

The Seller's Property Disclosure form

The Florida Realtors / Florida Bar standard residential contract incorporates by reference the Seller's Property Disclosure (SPD) form — a multi-page checklist on which the seller answers yes/no questions covering known defects in the major property systems (structure, roof, plumbing, electrical, HVAC, mold, sinkhole, prior flooding, prior insurance claims, lead paint, radon). The SPD is not statutorily mandated for non-active-adult Florida residential sales, but where the parties used the standard form contract (the overwhelming majority of Florida residential transactions), the SPD is contractually mandated and serves as a centerpiece of Johnson v. Davis discovery: a "no" answer on the SPD to a question about a now-disclosed defect is powerful impeachment of the seller's claimed lack of knowledge.

The F.S. § 689.25 active-adult community disclosure

Separately from Johnson v. Davis, F.S. § 689.25 imposes a statutory disclosure obligation specific to residences located in an "active-adult community" — a community qualifying for the federal Housing for Older Persons Act age-restricted exemption. The seller must disclose the community's age-restricted status to the buyer; failure to deliver the disclosure entitles the buyer to a 3-day right of rescission. F.S. § 689.25 is in addition to (not in lieu of) the Johnson v. Davis common-law duty. The 3-day rescission right is a pre-closing remedy; post-closing, the buyer's remedy is damages under Johnson v. Davis.

A worked example: structural defect, 1-year-old transaction

A Florida buyer closed on a residential property one year ago. Six months post-closing, a contractor inspecting an unrelated issue discovered hidden foundation cracking attributable to settlement that long predated the closing. The buyer's structural-engineer estimate puts repair cost at $15,000. A separate broker price opinion estimates the post-disclosure market discount at $8,000 (i.e., a buyer of the same property today, with the foundation history disclosed, would expect approximately an $8,000 price reduction even after repair). The seller's listing-agent file produced in pre-suit discovery includes a prior contractor's report flagging the same foundation issue eighteen months before the listing.

The calculator returns, on these facts:

• Compensatory damages: $15,000 — repair cost controls because it exceeds the $8,000 market diminution figure.
• Attorney's fees: $5,000 — the default planning estimate for a pre-trial-settled Florida disclosure-failure case.
• Estimated total recovery: $20,000.
• Johnson v. Davis claim viability: viable. All four elements are supported on the record: the defect existed at sale (the cracks predate the closing); the seller knew or should have known (the prior contractor's report); the defect is material (structural defects are material as a matter of law in Florida); and the defect was not readily observable (hidden foundation cracking is a textbook latent defect).
• F.S. § 95.11(3) statute of limitations: timely. The closing was one year ago.
• Recommendation: file. Send a demand letter under the Florida Realtors / Florida Bar standard contract dispute-resolution clause first to preserve the attorney's-fees claim, then file the complaint in circuit court if the demand is not satisfied. Note that emotional-distress damages are not recoverable under the Florida economic-loss rule.

What the calculator does not do

This is a planning-stage estimator. It does not:

• Replace Florida real-estate counsel. Johnson v. Davis claims involve substantive judgment — element-2 proof development, the SPD-impeachment record, MRTA-related issues if the chain is old, and damages-measure pleading. Consult a Florida-licensed real-estate attorney for the specific case.
• Project punitive damages. Florida allows punitive damages on a fraud theory adjacent to a Johnson v. Davis claim where the seller's conduct rises to fraud in the inducement, but the threshold is high and the recovery is fact-specific.
• Handle commercial-property disclosure cases. Johnson v. Davis is a residential-disclosure rule. Commercial-property disclosure obligations are governed by the contract and by traditional common-law fraud principles.
• Handle pre-closing rescission. The Florida Realtors / Florida Bar standard contract provides pre-closing inspection-period and disclosure-response remedies; the calculator addresses post-closing damages only.

How this page is maintained

The substantive framework — Johnson v. Davis (Fla. 1985), F.S. § 689.25, the Florida Realtors / Florida Bar standard contract and SPD form, F.S. § 95.11(3), and the Indemnity Ins. v. American Aviation economic-loss rule — has been stable in its core structure. The damages midpoints and attorney's-fee planning estimates track the Florida real-estate-litigation market; we sample data from active Florida real-estate counsel across the major counties each year and refresh accordingly.

Last reviewed: 2026-05-15 against Johnson v. Davis, 480 So.2d 625 (Fla. 1985); F.S. § 689.25 (active-adult community disclosure); the Florida Realtors / Florida Bar Standard Residential Contract for Sale and Purchase incorporating the SPD form; F.S. § 95.11(3) (4-year tort statute of limitations); and Indemnity Ins. Co. of N. America v. American Aviation, Inc., 891 So.2d 532 (Fla. 2004) (Florida economic-loss rule).