In short: Rarely, when the contract is as-is, bars oral modifications, and the buyer closed after its inspection period. In PESA, LLC v. Zeno Properties, LLC, the buyers of a Miami-Dade warehouse said the seller orally promised to close an open fire permit and failed to properly fill trenches in the floor, and they appealed a partial summary judgment against their contract claims. The Third District affirmed without a written opinion on February 11, 2015.
The Facts
There is no written opinion, so the facts below come from the oral argument and the docket and are what the parties argued, not findings. PESA, LLC and related buyers, including members of the Lam family and Alan Investment Properties, bought a warehouse in Miami-Dade County from Zeno Properties, LLC. The property had been used as a dye warehouse and had about 7,000 square feet of second-floor offices.
The contract had a 45-day due diligence period, after which the buyer took the property as is unless it cancelled. It also required changes to be in writing. An addendum required the seller to fill wells or trenches cut into the floor and close holes in the walls before closing. A few days after closing, the parties signed a post-closing escrow agreement, with $5,000 held for the floor work, and a seller occupancy agreement.
The buyers sued for breach of contract and on tort theories, including fraud in the inducement and negligent misrepresentation. The trial court entered partial summary judgment against them on the purchase contract and its addendum, leaving the post-closing agreements for later. The appeal was docketed as No. 3D14-364, and the court ordered the parties to show cause why it should not be dismissed for lack of jurisdiction.
- The buyers argued the seller’s managing member said the offices were built to code and promised the seller would close an open fire permit at its own cost, which they said was an oral modification that waived the as-is clause.
- They argued the seller filled the trenches with debris instead of clean fill, so the floor sank, and that the open permit could not be closed without tearing down the second floor, which they did.
- They argued the individuals who personally guaranteed more than $2 million in financing had standing to bring fraud claims.
- The seller argued the as-is clause, the written-modification clause and the statute of frauds barred any oral modification; that the buyers’ own former lawyer swore they knew of the open permits and did not ask the seller to close them until about two months after due diligence ended; and that the deal closed with title conveyed.
The Decision
The Third District affirmed on February 11, 2015. The ACIS docket lists the disposition as “Per Curiam Affirmed,” with no written opinion, and the mandate issued March 2, 2015.
The affirmance leaves the partial summary judgment in place. It does not say whether the court relied on the as-is clause, the statute of frauds, standing, or another ground, and it sets no precedent. According to the argument, claims under the post-closing escrow and occupancy agreements were not part of that ruling.
The Law
In commercial real estate, Florida still largely follows caveat emptor, “let the buyer beware.” The seller’s duty to disclose known latent defects recognized in Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), applies to residential sales. A commercial buyer is expected to protect itself through inspection and contract terms.
An as-is clause combined with a due diligence period usually means the buyer’s choices are to cancel during the period or close and take the property in its condition. A buyer who wants repairs must get them in a signed writing before the period ends.
Under the statute of frauds, section 725.01, a contract for the sale of land must be in a signed writing, and contracts often add their own clause requiring modifications to be in writing. Fraud in the inducement can sometimes survive an as-is clause, but it must be proven, and statements contradicted by the written contract are hard to rely on.
Current law (2026): Florida’s summary judgment rule, rule 1.510, was amended effective May 1, 2021 to adopt the federal standard. Partial judgments are appealable only in limited situations under Florida Rule of Appellate Procedure 9.110(k), which is why the court questioned its jurisdiction here.
Lessons
- Use the due diligence period. Open permits, code issues and floor conditions should be found and resolved in writing before it ends.
- Put every seller promise in a signed addendum with a clear remedy, such as a price credit or an adequate escrow. A $5,000 escrow will not cover a failed floor or a rebuilt second floor.
- Search the building department records for open permits before closing, not after.
- Contract claims belong to the contracting entity. Guarantors and owners of the buyer usually need an independent claim of their own.
- A per curiam affirmance ends the appeal without explaining why, so the trial record decides these cases.
Watch the Oral Argument
This is the recording of the Third District oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling, and this decision was a per curiam affirmance without an opinion.
🎯 Trenches in the Floor, Holes in the Walls: An Addendum the Seller Never Performed
Read the Law on FloridaRules.net
The statutes and court rules discussed in this article, free to read on FloridaRules.net:
Go Deeper
- BUYER BEWARE: Fraud Cannot Be Pursued in a Florida Real Estate Contract
- Vacant Lot Buyers Lose Nondisclosure Case Over Hidden Muck (Eiman v. Sullivan)
- A Landlord's Renovation Without Permits and the Tenant's Building-Code Claim (Comptech v. Milam Commerce Park)
Frequently Asked Questions
Can I sue a seller for an oral promise after buying property as-is in Florida?
It is difficult. A real estate contract must be in writing, and most contracts require changes to be signed. In PESA v. Zeno Properties, the buyers said the seller orally promised to close a fire permit, and the Third District affirmed a judgment against their contract claims without an opinion.
Does a commercial property seller have to disclose defects in Florida?
Generally no. The Johnson v. Davis disclosure duty applies to residential property. Commercial buyers are expected to inspect and to protect themselves in the contract, though active fraud can still be actionable.
What happens if I close after the due diligence period without objecting?
Under a typical as-is contract, you accept the property in its condition. The buyers in PESA did not ask the seller to close the open permits until about two months after their 45-day period ended, according to the seller’s argument.
Can I sue the seller over open permits discovered after closing?
Only if the contract or another enforceable promise made the seller responsible, or you can prove fraud. Checking the building department’s permit records before closing is the best protection.
Talk to a Florida real estate litigation lawyer
Weidner Law, P.A. handles Florida real estate disputes, title problems 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.
