Background
Sara Davidovich purchased a condominium from Jill Lippoff under an “as is” residential sales contract. After the transaction closed, Davidovich learned that the condominium’s travertine floors had been installed without a building permit.
Davidovich sued Lippoff, claiming the seller had a duty to disclose the unpermitted installation. Lippoff moved for summary judgment. Davidovich failed to file a timely response to the motion, instead filing papers only days before the hearing. The trial court granted summary judgment in Lippoff’s favor.
Davidovich appealed, arguing the trial court erred in entering summary judgment without considering her claims.
The Court’s Holding
The Third District affirmed summary judgment for Lippoff. The court first found that Davidovich’s failure to timely respond to the summary judgment motion was procedurally fatal. Under Florida Rule of Civil Procedure 1.510(c)(5), the non-moving party must serve a response within 20 days before the hearing. Late filings intended to delay proceedings do not warrant reversal, particularly where the trial court enforced plain procedural rules designed to prevent gamesmanship.
On the merits, the court held that Lippoff’s lack of actual knowledge that the floors were installed without a permit remained undisputed. Under Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), a seller has a duty to disclose material facts affecting the property only when the seller has actual knowledge of those facts and the defect is not readily observable. Recent Florida decisions confirm that liability under Johnson requires proof of the seller’s actual knowledge. Because Davidovich presented no evidence that Lippoff knew of the permit violation, summary judgment was proper.
Key Takeaways
- Procedural compliance with summary judgment briefing deadlines is strictly enforced; late responses do not warrant reversal absent extraordinary circumstances.
- Under Florida law, a seller’s duty to disclose defects applies only to material facts the seller has actual knowledge of—constructive knowledge or reasonable suspicion is insufficient.
- The “as is” contract language does not eliminate disclosure obligations, but the burden remains on the buyer to prove the seller’s actual knowledge of undisclosed defects.
- Appellants who fail to create a trial record—here, the absence of a hearing transcript—bear the burden of demonstrating trial court error.
Why It Matters
This decision reinforces a significant gap in buyer protection in Florida residential real estate transactions. Even material defects like unpermitted renovations do not trigger a seller’s disclosure obligation unless the seller actually knew about the problem. For sellers who purchase properties without full knowledge of prior work, or who close quickly without inspection, this rule shields them from liability—even if a defect materially affects the property’s value or legality. Buyers rely on inspections and “as is” closings as the primary tools to protect themselves.
The decision also reflects the appellate court’s strict approach to procedural rules. Practitioners must meet briefing deadlines precisely; last-minute filings will not save a case, and appellate courts will not overlook procedural failures to reach the merits, even when doing so might appear to defeat substantive claims.