When a home seller knows about termite damage, does the law require the seller to tell the buyer? The answer depends on which state you are in, and Alabama and Florida start from very different places.
Key takeaways. Florida imposes a broad duty on home sellers to disclose known, material defects that are not readily observable, and that duty can reach known termite damage. Alabama historically follows caveat emptor for used-home sales, meaning "let the buyer beware," but a duty to disclose can still arise under Alabama's suppression statute depending on the circumstances. Termite inspection reports and the liability of pest-control companies that hid damage add another layer to both states' analyses.
Two different starting points
The core difference is about where each state begins.
Florida begins with a duty to disclose. Alabama begins with caveat emptor and then asks whether the circumstances create a duty. Understanding that contrast is the foundation for evaluating a termite non-disclosure claim in either state.
Florida: a broad duty to disclose known, hidden defects
Florida's modern rule comes from the state Supreme Court's decision in Johnson v. Davis, 480 So. 2d 625 (Fla. 1985). That case abrogated the old doctrine of caveat emptor for residential real estate and announced a broad disclosure duty. As the court put it, where the seller of a home knows of facts materially affecting the value of the property that are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. (The case itself involved undisclosed roof defects.)
Applied to termites, the Johnson v. Davis framework can require a Florida seller who actually knows of material termite damage to disclose it, provided the damage is not readily observable and is not known to the buyer. Each of those elements matters:
- Known to the seller. The seller must actually know the fact. A seller who is genuinely unaware of hidden termite damage has not violated the disclosure duty as framed in Johnson v. Davis.
- Materially affecting value. Termite damage significant enough to affect the home's value fits comfortably within the rule; trivial or purely cosmetic issues are a different question.
- Not readily observable. The rule is aimed at hidden defects. Damage that a buyer could plainly see may not qualify.
- Not known to the buyer. If the buyer already knows, there is nothing to disclose.
For Florida homebuyers, Johnson v. Davis is a powerful backdrop: a seller who conceals known, material, hidden termite damage may face liability for that non-disclosure.
Alabama: caveat emptor, with a suppression exception
Alabama's starting point is different. For the sale of used residential real estate, Alabama has historically adhered to caveat emptor. Under that traditional rule, a seller is generally not obligated to volunteer information about the condition of a used home, and the buyer bears responsibility for investigating.
But caveat emptor is a starting point, not the end of the analysis. A duty to disclose can arise under Alabama's suppression statute, Ala. Code § 6-5-102, which makes actionable the suppression of a material fact that a party is under an obligation to communicate. Under the statute, that obligation can arise from a confidential relationship between the parties or from the particular circumstances of the case.
The key question, then, is whether the circumstances gave rise to a duty to speak. Alabama's leading modern decision on that question is State Farm Fire & Cas. Co. v. Owen, 729 So. 2d 834 (Ala. 1999). Owen makes clear that mere silence or superior knowledge, standing alone, does not impose a duty to disclose. Instead, whether a duty exists is evaluated by weighing several factors, generally described as:
- the relationship of the parties;
- the relative knowledge of the parties;
- the value of the particular fact at issue;
- the plaintiff's opportunity to discover the fact;
- the customs of the trade; and
- other relevant circumstances.
For a termite non-disclosure claim in Alabama, this six-factor analysis is where the real work happens. A casual, arm's-length used-home sale between strangers, where the buyer had full opportunity to inspect, sits closer to the caveat emptor end of the spectrum. A transaction where a seller had unique knowledge of concealed damage, actively hid it, or stood in a relationship of trust with the buyer may support a duty to disclose. The outcome is genuinely fact-dependent, and no single fact is automatically decisive.
Being precise about the contrast
It is worth stating the contrast carefully, because it is easy to overstate.
Florida is not a "seller must disclose everything" regime; the Johnson v. Davis duty is bounded by knowledge, materiality, observability, and the buyer's own knowledge. Alabama is not a "sellers can hide anything" regime; caveat emptor yields where the suppression statute and the Owen factors establish a duty. The practical difference is one of default and emphasis. Florida law more readily finds a disclosure duty for known, hidden, material defects, while Alabama requires the buyer to show that the particular circumstances created the obligation to speak.
For a homeowner deciding whether to pursue a claim, that difference shapes the strategy. In Florida, the analysis often centers on proving the seller's actual knowledge of hidden damage. In Alabama, the analysis often centers on building the circumstances that gave rise to a duty under the Owen factors.
The role of the inspection reports
Neither state's analysis happens in a vacuum. Termite inspection reports are usually part of the transaction and can be central to a dispute.
In Alabama, the Official Alabama Wood Infestation Inspection Report (WIIR) documents the inspector's findings of visible evidence of infestation as of the inspection date. In Florida, the equivalent role is played by FDACS Form 13645, the only legally recognized WDO report form for real-estate transactions. What these reports say, and what they omit, can be pivotal. A report that concealed or failed to disclose known damage can both support a buyer's claim and shift attention to the pest-control company that prepared it.
Pest-control-company liability where it hid damage
Sellers are not the only potential defendants. In many cases the more significant exposure lies with the pest-control company whose report failed to disclose damage it knew about or should have found.
Alabama law has allowed such claims to proceed. In Cherry v. Pinson Termite & Pest Control, LLC, No. 1140369 (Ala. 2016), the Alabama Supreme Court reversed a summary judgment that had been entered for the pest-control company. The buyer alleged that the WIIR failed to disclose termite damage and that the treatment was incomplete, and the court concluded those allegations were sufficient to allow fraud and negligence theories to move forward. The lesson is that when a report omits known damage, the company that signed it may bear responsibility, independent of whatever the seller knew or disclosed.
What to do if you suspect concealed termite damage
Whether you are in Alabama or Florida, a few steps can protect your position if you discover termite damage after buying a home:
- Identify what everyone knew. Gather any written disclosures the seller provided, the sales contract, and any communications about the home's condition. In Florida, the seller's actual knowledge is often the central issue; in Alabama, the surrounding circumstances are.
- Locate the inspection report. Find your WIIR (Alabama) or Form 13645 (Florida). Compare what it said to what you later found.
- Document the damage and the date. Photograph the damage, record when you discovered it, and keep repair estimates. Discovery timing can affect legal deadlines.
- Preserve the evidence. If you can safely wait, avoid tearing out affected areas before the damage is documented.
- Get an independent inspection. A second opinion can help establish whether the damage was hidden and whether it should have been reported.
- Consult counsel promptly. The seller-disclosure analysis differs by state and is fact-intensive, and deadlines are short. A termite litigation attorney can evaluate which theories, and which defendants, fit your situation.
Closing
Alabama and Florida answer the seller-disclosure question from opposite starting points, but neither answer is absolute. Florida's Johnson v. Davis duty reaches known, hidden, material defects, including termite damage. Alabama's caveat emptor rule yields where the suppression statute and the Owen factors establish a duty to speak. And in both states, the inspection report and the pest-control company that prepared it can be at the heart of the case. If you suspect concealed termite damage, an early, careful review of what was known, what was disclosed, and what the report said is the right place to begin.
For related reading, see our discussions of the Official Alabama Wood Infestation Inspection Report and of Florida WDO inspections.
Talk to Yates Anderson
If a pest-control company has denied a termite claim, buried damage, or filed an inspection you believe was wrong, the analysis above only goes so far. Request a case evaluation and a Yates Anderson attorney will respond within one business day.
Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.