A defect in the foundation of a residential home caused water to seep through the concrete slab. The buyer alleged that the seller’s real estate broker had knowledge of this defect at the time of the sale. The broker alleged that he did not have “actual” knowledge of the defect. For liability to attach, Florida case law requires that the broker have “actual” knowledge. “Constructive” knowledge is insufficient.

The trial court granted summary judgment and an appeal was filed. The issue on appeal turned on whether the circumstantial evidence presented by the buyer tended to prove the broker’s “actual” knowledge as opposed to his “constructive” knowledge. In a 3-0 written opinion, the appellate panel agreed with the arguments presented by the Co-Chair of Campbell Conroy & O’Neil’s Advanced Motion and Appellate Practice Group.