ORLANDO, Fla. — Now that all Realtors® and MLS participants working with a buyer must have some type of written agreement prior to touring a home with a buyer they are working with, it’s important to know what they can and can’t do when a buyer asks about future representation. Of course, if the buyer hasn’t signed anything with another brokerage firm (or agreed to some form of oral agreement that could create obligations), then they’re fair game. But if they have signed an exclusive buyer agreement, showing agreement or property pre-touring agreement, there can be restrictions and limitations.

Exclusive Buyer Agreement

If the buyer has signed an exclusive agreement, such as the Florida Realtors® Exclusive Buyer Broker Agreement (EBBA) or their company’s own exclusive agreement, the Realtor Code of Ethics Standard of Practice 16-6 provides specific guidance that limits how the Realtor or MLS participant can respond. It provides that Realtors should never directly or indirectly initiate a conversation about representation for the same type of services. But if a buyer initiates the conversation, this Standard of Practice provides that a Realtor may discuss terms for an agreement that will become effective after the existing EBBA with another firm expires. This narrow discussion is the only safe discussion, although the buyer’s first question will often be “How can I get out of my current EBBA?”

If a Realtor decides to review another company’s EBBA to advise on the seller’s legal rights and obligations, this could be unauthorized practice of law. If this isn’t enough reason to stay away from contract review, a lawsuit could also result if the buyer or their current firm suffers financial harm based on specific advice the Realtor gave.

So, what can a buyer do to try and get out of an existing EBBA? The buyer can always talk with the existing broker first to see if they can negotiate a friendly (or friendly enough to get the job done) unconditional termination. If that fails, the buyer should carefully read the agreement or consult a lawyer to see where they stand.

Showing Agreement

The Florida Realtors Showing Agreement (SA) is a nonexclusive agreement, so Article 16 doesn’t apply. This agreement provides that the buyer is interested in touring or negotiating a purchase, option or lease of one or more designated properties. Compensation is due if the buyer signs a contract for any of those properties during the term of the SA.

While there’s no prohibition against talking with a buyer who has a SA, that contract obligates the seller to inform “any other real estate licensee with whom the Consumer has contact that Consumer has contracted to work with Broker with regard to the properties listed above.” From a buyer’s perspective, they should make sure to disclose the existing SA and exclude any designated properties from an EBBA they decide to sign with a new firm. If both firms have SAs for different properties, then no modification is necessary.

Property Pre-Touring Agreement

The final type of agreement we’ll look at is the Florida Realtors Property Pre-Touring Agreement (PPTA). This agreement has the least number of strings attached, from a buyer’s perspective. While the PPTA does mention compensation, it’s in the context of this sentence: “If you wish to work with Broker to purchase property Broker shows you, Broker’s compensation for services Broker provides to you will be as follows…” Therefore, it’s unlikely that this agreement would conflict with any buyer agreement they sign with a new firm or trigger any ethical duties. Of course, it’s never a bad idea for the buyer or their attorney to carefully review all terms of the PPTA to ensure this is the case.

Joel Maxson is Associate General Counsel

Note: Information deemed accurate on date of publication

© 2025 Florida Realtors®

 ORLANDO, Fla. — During the 2024 session, the Florida Legislature – perhaps concerned about the flood damage caused by recent hurricanes – created section 689.302, Florida Statutes.

Entitled “Disclosure of flood risks to prospective purchasers,” section 689.302 mandated that a seller complete and provide such a disclosure to any “purchaser of residential real property.” The statute also sets forth the exact wording such a disclosure must use.

In the 2024 version of the form, the seller was required to disclose “claims with insurance providers relating to flood damage” and “federal assistance received to remediate flood damage.” The seller was compelled to provide the disclosure “at or before the time the sales contract is executed.”

Though the statute mandated a new specific flood disclosure form, a seller was already required under Florida law to make known most of the facts the disclosure references. Under the Florida Supreme Court case Johnson v. Davis, 480 So. 2d 625 (Fla. 1985), a seller must disclose to a buyer “facts materially affecting the value of the property which are not readily observable and are not known to the buyer.” Over the years, questions have arisen whether latent defects in a property must be disclosed if the seller believes they have been remediated. The first flood disclosure removes that uncertainty, at least with respect to flood-related insurance claims and federally assisted remediation.

In 2025, the Legislature went a step further and expanded the flood disclosure for residential sales. In addition to the two categories from the original disclosure, the amended version of section 689.302 added seller’s “knowledge of any flooding that damaged the property during the ownership of the property,” not just that which required an insurance claim. The amended statute also removed the requirement that remediation assistance be from a federal source. Now sellers must disclose any assistance they may have received to fix the flood damage.

In addition to expanding the residential sales flood disclosure, the Legislature created an additional flood disclosure for rental properties. Section 83.512 now obligates the landlord to make the same three disclosures found in section 689.302 “at or before the execution of a rental agreement for a term of 1 year or longer.” As with section 689.503, the language that must be in the disclosure is set out directly in the statute. Critically, this disclosure “must be in a separate document” – it cannot be part of the lease.

Section 83.512 also provides for penalties if the landlord does not comply. If the landlord does not provide the disclosure, and the tenant suffers substantial loss or damage due to flooding, the tenant may give written notice of termination to go into effect no later than 30 days after the date of damage. The landlord must then refund all advance rent from the date of termination (though the tenant is still liable for pre-flood delinquent rent).

Both section 83.512 and the amended version of section 689.302 go into effect on October 1, 2025.  As with other disclosure forms, it is critical that the seller or landlord fill out the disclosure. A real estate licensee can point them in the right direction, but the disclosure of information should always be the client’s or customer’s responsibility.

Richard Swank is an Associate General Counsel for Florida Realtors.

Note: Information deemed accurate on date of publication.

© 2025 Florida Realtors®