In short: The sellers won. In Eiman v. Sullivan (2015), buyers of a Pinellas waterfront lot sued under Johnson v. Davis after finding muck at their building site and won $65,000 at trial. The Second District reversed and ordered judgment for the sellers: no proof of a material defect the sellers actually knew about.
The Facts
In 2005 the Eimans bought a waterfront vacant lot in Pinellas County. Invasive Brazilian pepper trees covered the southern edge, and they had to remove the trees and stabilize the area before they could get a building permit. They hired someone to clear the trees and cover the area with fill. They did no soil testing, later decided to buy a house elsewhere, and sold the lot.
In 2006 the Sullivans bought the lot to build a home under an “as is” contract with a short inspection period they did not use for soil testing. After closing, their builder’s subsurface study at the planned house site, which was not the area the Eimans had filled, found muck that would require deep pilings, an estimated $65,000 more in construction costs. The Sullivans dropped the project and sued the sellers and their broker under Johnson v. Davis, claiming concealment of filled wetlands and muck.
The broker won summary judgment. After a two-day bench trial, the court found the Eimans liable and awarded $65,000. The Eimans appealed; the Sullivans cross-appealed on damages.
The Decision
The Second District reversed and directed entry of judgment for the sellers. It assumed, without deciding, that Johnson v. Davis applies to the sale of residential vacant land, and held the buyers’ proof failed anyway. The pleaded defect was muck under the filled area, but the buyers never planned to build there, so it could not raise their construction costs. At trial they shifted to a new theory, that the fill made the lot look bigger and more buildable, which was not what they had pleaded. The evidence also showed the lot was buildable with foundation changes.
Second, a buyer must prove the seller actually knew of the undisclosed material defect. An engineer’s qualified testimony that muck could have been visible did not show the Eimans saw or understood the subsurface conditions, and nothing showed they knew anything about the soil where the Sullivans planned to build. With no competent evidence on materiality or knowledge, liability could not stand, and the damages cross-appeal was moot.
The Law
Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), requires a seller of a home to disclose known facts that materially affect the property’s value and are not readily observable to the buyer. To win, the buyer must prove the seller actually knew of the defect, that it was material, and that it was not readily observable. An “as is” clause does not by itself defeat a properly proved Johnson claim, but the buyer still carries the burden on each element.
The Florida Supreme Court has not squarely extended Johnson to vacant land, and this opinion left that question open. Commercial property is treated differently. Florida’s disclosure duty comes from case law, not a statute; the separate statutory disclosure for coastal property is in section 161.57.
Current law (2026): Johnson v. Davis duty is common law; no statutory change. s. 689.261 (property tax disclosure) and s. 161.57 (coastal) are the only general statutory disclosures and do not address soil.
Lessons
- Buyers of vacant land: do soil and suitability testing during the inspection period, at the spot you plan to build.
- A nondisclosure claim requires proof the seller actually knew. Suspicion or what a seller “could have” seen is not enough.
- Plead the defect you can prove. Switching theories at trial can sink a claim.
- Sellers: disclose what you know, including clearing and fill work. Records of what was done, and where, can be decisive.
Source: Eiman v. Sullivan, No. 2D13-4553, 173 So. 3d 994 (Fla. 2d DCA 2015) — Fla. 2d DCA (May 22, 2015).
Watch the Oral Argument
This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.
Seller Disclosure on Vacant Land — Any Duty in Florida? | Eiman v. Sullivan, 2D13-4553
Go Deeper
- Hidden Buyer, $13M Sale: A Seller's Fraud Claim Gets Revived (Puleo v. Cohen)
- What Happens at a Florida Real Estate Closing: Costs, Liens, and Whether You Need a Lawyer
Frequently Asked Questions
Does a Florida seller have to disclose defects in vacant land?
The answer is not settled. Johnson v. Davis requires home sellers to disclose known, material defects that are not readily observable. In Eiman v. Sullivan the Second District assumed without deciding that the rule applies to residential vacant land and still ruled for the sellers because the buyers failed to prove a material defect the sellers knew about.
What do I have to prove for a Johnson v. Davis nondisclosure claim?
The buyer must show the seller knew of a fact materially affecting the property’s value, that the fact was not readily observable or known to the buyer, and that the seller failed to disclose it. Actual knowledge is required; the Second District rejected testimony that a defect merely could have been visible.
Does an as is contract protect a Florida seller from nondisclosure claims?
Not completely. An as is clause does not by itself bar a properly proved Johnson v. Davis claim for known, hidden defects in a home. But the buyer still must prove every element. In Eiman, the as is contract and the buyers’ unused inspection period were part of the background to a claim that failed on proof.
Should I get a soil test before buying a lot in Florida?
It is wise, especially near water or where fill has been placed. In Eiman v. Sullivan the buyers learned of muck at their building site only after closing, from their builder’s study, and could not shift the roughly $65,000 extra foundation cost to the sellers.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, contracts, closings and appeals from St. Petersburg. If you need a real estate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: every Florida statute and court rule is on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
