All entries for October 2019

Permit Me to Speak About "Permits"

Posted by DL Admin on Friday Oct 18, 2019 11:30 am

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Authored By: Ryan A. Featherstone, Esq.

As real estate professionals, we have all had a transaction or two that have been affected by permit-related issues.  Whether it was an open permit, an expired permit, a failed inspection, or unpermitted work, permit-related issues can derail an otherwise smooth and successful transaction.  And now that all title insurance underwriters require the additional “municipal lien search“ prior to closing, dealing with permit issues is as common as dealing with title-related issues.  Luckily, however, the legislature has made some recent changes that will hopefully, in practice, make dealing with certain permit-related issues easier for all of us.

House Bill 447, effective July 1, 2019, resulted in some significant changes to the Florida Statutes.  For example, an open permit may now be closed by a local enforcement agency 6 years after it was issued without a final inspection if the local enforcement agency determines that no apparent safety hazard exists.  This will be tremendously helpful for those older permit issues that often come up, where currently time-consuming and often costly effort is required to get these permits scheduled for final inspections and closed out once and for all.  Additionally, under this Bill, we finally have a definition for the term “close” as it relates to open permits.  That definition is, “that all requirements of the permit have been satisfied.”  Next, this Bill states that if a permit has expired and the work has been substantially completed, the permit may be closed without obtaining a new permit, and the work required to close the permit may be done pursuant to the building code in effect for the original permit, unless the contractor is using a different material, design, or method of construction than that used under the original permit.  Furthermore, this Bill protects bona fide purchasers for value from fines, penalties, sanctions and fees due to an open permit that was applied for by a previous owner and was not closed.  Next, the local governing body can only charge one reasonable search fee for the research and time necessary to pull permit records on a property.  And finally, to help reduce the number of future open or expired permits, the Bill authorizes notice of a soon-to-expire permit to be sent to the property owner.  However, this is not a requirement; the statute states that the local government “may” send a written notice of expiration.

Another helpful recent legislative change, House Bill 1159, effective July 1, 2019, created Florida Statutes section 163.045 “Tree pruning, trimming, or removal on residential property”.  This law states that if a tree is a danger to persons or property as confirmed by a certified arborist or licensed landscape architect, then a permit to remove, prune or trim the tree is no longer necessary.  The law also states that the property owner cannot be required to replant a replacement tree.  Of course, when it comes to our beautiful Florida trees, this topic does have its critics.  Some argue that the law is not stringent enough on its requirements and could be easily subject to abuse, or perhaps result in a corrupt niche industry looking to profit from the removal of trees that are deemed “dangerous”.  From a practical standpoint though, this can be another tool in keeping a closing on track and on time.

Whenever dealing with any permit-related issue, as always, we recommend you consult with a Florida licensed real estate attorney.

This blog is intended for informational purposes only and it is not intended to be, nor should it be construed as, legal advice or legal opinion.  The reader should not consider this information to be an invitation to an attorney/client relationship, should not rely on information presented here for any purpose, and should always seek the legal advice of counsel in the appropriate jurisdiction.

Accessorizing Your Real Property!

Posted by DL Admin on Wednesday Oct 2, 2019 5:47 pm

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Authored By: Benjamin DeMarsh, Esq. and Ryan Featherstone, Esq.

Sarasota County plans to adopt a new ordinance (No. 2019-024) that amends the Sarasota County Unified Development Code and expands the ability of property owners to utilize accessory dwelling units in many residential areas of the County.  Accessory dwelling units, or “ADUs”, are smaller freestanding or connected dwelling units located on the same lot as a principal dwelling.  They are commonly known as granny flats, mother-in-law suites, or secondary suites.  ADUs have the potential to dramatically increase the supply of affordable housing within many residentially zoned areas in Sarasota County.

Across the country, many municipalities are taking steps to encourage the use of ADUs, and Sarasota County seems to be on the forefront of this trend.  The Sarasota County Board of County Commissioners unanimously voted to adopt this new ordinance governing ADUs in late September 2019. Sarasota County Residents can expect to see the new ordinance implemented as soon as this year.

The Unified Development Code will be amended as follows:

  1. Removes language limiting ADUs only in subdivisions created after October 27, 2003.  This is likely to be the most significant change, as it is mostly older housing that has the capability of adding ADUs due to less restrictive or no HOA rules existing in older subdivisions, as HOA restrictions against ADUs will preempt the ordinance. 
  2. Increases the allowable size of ADUs from 500 sq. feet to 750 sq. feet.
  3. Eliminates ADUs from building density calculations.
  4. Accessory dwelling units can now include a kitchen.  This is another significant change to the existing code, allowing the ADU to now be a fully functioning guest or rental suite.
  5. Maintains the prohibition of ADUs on the Barriers Islands, but adds a prohibition in cluster subdivisions.

Sarasota County’s adoption of this ordinance is not without critics.  Many argue that ADUs will decrease property values, affect homeowners’ homestead tax exemptions, and result in numerous covert rental operations (e.g. Airbnb).  Fortunately, the County has taken concrete steps to ensure that ADUs are not abused by investors and do not have a negative impact on existing homeowners.

There are several key requirements that all property owners should keep in mind before building their dream ADU:

  1. The owner must occupy either the accessory dwelling unit or the principal dwelling unit.  ADUs are not appropriate for investment property.  Part of the County’s goal is to increase the supply of affordable housing for young professionals, elderly, married couples without children, and to allow families to care for their aging relatives who want an alternative to a nursing home.  
  2. Rental restrictions applicable to all homes in Sarasota County will still apply to residences and their ADUs.  Same as for the principal structure, ADUs cannot be rented for periods less than 30 days at a time.
  3. Owners will need to ensure the ADU and principal structures do not exceed max building coverage requirements for the lot and setback requirements for the principal structure.
  4. The ADU needs to have same the height, finish and style of the principal structure.
  5. One parking space is required per ADU, which could be tandem parking, or shell or grass surfacing and cannot be street parking.

Dunlap Moran will be closely monitoring this development, and will be available to answer questions for any property owners considering building an ADU.

This blog is intended for informational purposes only and it is not intended to be, nor should it be construed as, legal advice or legal opinion.  The reader should not consider this information to be an invitation to an attorney/client relationship, should not rely on information presented here for any purpose, and should always seek the legal advice of counsel in the appropriate jurisdiction.