Latent vs Patent Defects in Florida Real Estate

A latent defect is a hidden flaw in a property that a reasonable inspection would not reveal. A patent defect is a visible flaw that a reasonable inspection would reveal. In Florida real estate, that difference often decides who pays for a problem discovered after closing: the buyer, the seller, or the builder. This guide explains both terms, the Florida rules that apply to each, and the deadlines for bringing a claim in Fort Lauderdale and Broward County.

What Is a Latent Defect in Real Estate?

A latent defect is a flaw that exists at the time of sale but cannot be found through ordinary observation or a standard professional inspection. It usually shows up only after the buyer moves in and starts using the property. Common examples in South Florida homes include:

Concealed water intrusion: leaks behind drywall, under tile, or around windows that were painted over or patched
Hidden mold: growth inside walls, ceilings, or HVAC ductwork
Structural problems: foundation or slab cracks hidden under flooring or finished walls
Plumbing failures: deteriorated cast iron drain lines or leaks under the slab
Electrical defects: faulty or unpermitted wiring inside walls or in the attic
Termite damage: active infestation or prior damage concealed behind trim or wall coverings
Unpermitted work: additions, enclosures, or system replacements done without a building permit

The key question is not whether the buyer actually found the problem, but whether a reasonable buyer using ordinary diligence, including a standard inspection, could have found it.

What Is a Patent Defect in Real Estate?

A patent defect is a flaw that is visible or easily discoverable through a reasonable inspection. Buyers are generally expected to find these during their inspection period and either negotiate, cancel, or accept the property as it is. Examples include:

Cracked walls, ceilings, or driveways visible to the naked eye
Missing or damaged roof shingles or tiles
Broken windows, doors, or sliding glass doors
Visible water stains, standing water, or obvious flooding
Appliances or fixtures that do not work when tested

If a buyer could have spotted a patent defect but did not raise it before closing, it is usually difficult to recover from the seller afterward. The exception is active concealment. If a seller hides a visible problem, for example by covering a stain or moving furniture over damaged flooring, the defect may be treated as latent because the seller made it undiscoverable.

Latent vs Patent Defects at a Glance

	Latent Defect	Patent Defect
Visibility	Hidden; not found by a reasonable inspection	Visible or found by a reasonable inspection
When it is usually found	After closing, once the property is in use	During showings or the inspection period
Seller disclosure	Residential sellers must disclose known latent defects that materially affect value	No duty to point out what the buyer can readily see
Typical claim	Nondisclosure, fraud, or a construction defect claim against the builder	Usually none, unless the seller concealed it or the contract required a repair

Florida’s Seller Disclosure Rule for Latent Defects

Florida’s disclosure duty for home sales comes from the Florida Supreme Court’s decision in Johnson v. Davis (1985). Under that rule, a seller of a home who knows of facts that materially affect the property’s value, and that are not readily observable or known to the buyer, must disclose them. Several points matter in practice:

Knowledge is required. A seller who truly did not know about a hidden defect is generally not liable under the disclosure rule.
“As is” does not erase the duty. An as-is contract limits repair obligations, but Florida courts have held it does not protect a residential seller who hides a known latent defect.
Commercial property is different. The Johnson v. Davis rule applies to residential sales. Commercial buyers are generally expected to protect themselves through due diligence and contract terms.
Flood history must be disclosed. Under section 689.302, Florida Statutes, sellers of residential property must disclose flood-related insurance claims, assistance received for flood damage, and, after the 2025 amendments, known flooding that damaged the property during their ownership.
Some facts are not material by law. Section 689.25 provides that a death, homicide, or suicide on the property is not a material fact that must be disclosed.

Sellers can learn more about their exposure in our FAQ on how long you are liable after selling a house in Florida.

Latent Defects in New Construction

When a hidden defect comes from how the property was designed or built, the claim is often against the builder, contractor, or design professional rather than the seller. These claims follow Florida’s construction defect rules, including the mandatory pre-suit notice process in Chapter 558. See our guide to construction defects homeowners discover after buying, or speak with a Fort Lauderdale construction defect attorney.

How Latent vs Patent Defects Affect a Lawsuit

The category of the defect shapes almost every part of a post-closing dispute:

Nondisclosure or fraud: the buyer must show the seller knew about a hidden, material defect and did not disclose it, or affirmatively misrepresented the property’s condition.
Breach of contract: the buyer relies on specific repair, warranty, or condition terms in the purchase contract. Learn more about when a buyer can sue a seller for breach of contract.
Construction defect: the owner shows the work violated the building code, the plans, or accepted construction standards.
Patent defect defense: sellers and builders often argue the problem was visible, so the buyer accepted it by closing. Inspection reports and photographs from before closing become central evidence.

Steps to Take If You Discover a Defect After Closing

Photograph and document the defect, including dates and any damage it is causing.
Take reasonable steps to prevent further damage, and keep receipts.
Gather the seller’s disclosure form, your inspection report, the contract, and all communications from the transaction.
Have a licensed inspector, engineer, or contractor evaluate the defect and how long it has likely existed.
Check permit records with the city or Broward County for unpermitted or uninspected work.
Speak with a real estate transaction dispute attorney before demanding repairs or signing any release.

Deadlines for Latent Defect Claims in Florida

Florida’s deadlines depend on the type of claim:

Fraud or nondisclosure: generally four years, running from when the fraud was discovered or should have been discovered, but no later than 12 years after the fraud occurred.
Breach of a written contract: generally five years.
Construction defects: generally four years, and for latent defects the period runs from when the defect was or should have been discovered. Since 2023, Florida also has a seven-year statute of repose that generally runs from the earliest of the certificate of occupancy, temporary certificate of occupancy, certificate of completion, or abandonment of construction. After that, most claims are barred even if the defect was never discoverable.

These deadlines have exceptions, and applying them to a specific property can be complicated. If you suspect a hidden defect, get advice early.

Frequently Asked Questions

Question	Answer
What is a latent defect?	A latent defect is a hidden flaw that is not apparent through a reasonable inspection, such as concealed water damage, hidden mold, or faulty wiring inside walls.
What is a patent defect in real estate?	A patent defect is a visible flaw a reasonable inspection would reveal, such as a cracked wall, missing roof tiles, or a broken window.
Can I sue for a latent defect discovered after purchase?	Possibly. If a residential seller knew about a material hidden defect and did not disclose it, you may have a nondisclosure or fraud claim. If the defect came from construction, you may have a claim against the builder or contractor.
Does an as-is contract protect the seller from latent defect claims?	Not for known latent defects in a residential sale. An as-is clause limits repair obligations, but it does not excuse a seller who conceals a known material defect.
Who pays for a patent defect?	Usually the buyer, because a patent defect should have been found during inspection, unless the contract required the seller to repair it or the seller concealed it.
How long do I have to file a latent defect claim in Florida?	It depends on the claim. Fraud claims generally have four years from discovery, written contract claims five years, and construction defect claims four years from discovery subject to a seven-year statute of repose.

Local Resources in Fort Lauderdale and Broward County

Resource	Contact Information
Broward County Consumer Protection	Visit Website
Fort Lauderdale Building Department	Visit Website
Florida DBPR – Verify a License	Visit Website

Get Legal Help With a Latent Defect Dispute in Fort Lauderdale

Whether you are a buyer who found a hidden problem after closing or a seller facing a defect claim, Hughes Real Estate Law can review your contract, disclosures, and inspection records and explain your options. Call (954) 256-5125 or visit our office at 1141 SE 2nd Ave, Fort Lauderdale, FL 33316.