Authored By: Ryan Featherstone, Esq. rfeatherstone@dunlapmoran.com
In Florida, we all live on a peninsula, so in one respect we all live on waterfront property. But when you are purchasing or working with clients who may be interested in purchasing property that abuts any body of water, the following is a non-exhaustive list of items to consider prior to making an offer, or during the inspection period provided by the purchase agreement. Of course, this is a simplistic take on each of these issues, but can provide a good checklist for waterfront due diligence.
Riparian Rights / Mean High Water Line
Riparian rights in Florida include the right of ingress, egress, docking, boating, bathing, fishing and other rights defined by Florida law, as well as the right of an upland owner to an unobstructed view of adjoining waters. These rights extend to the “mean high water line” on the abutting waterway, which is the line marking the average height of the high waters over a 19-year period and is the line along the shores of land immediately bordering on navigable waters recognized and declared to be the boundary between the foreshore owned by the state in its sovereign capacity and the upland subject to private ownership. A properly prepared survey will show the mean high water line.
Seawalls
Specific, professional inspections of seawalls are crucial to the purchase of waterfront property that contains a seawall. A defective or delapidated seawall can costs thousands of dollars in damage and devalue a property substantially. Seawall inspections are essential to a comprehensive and diligent inspection of waterfront property, and needed repairs should be negotiated accordingly during the inspection period of the purchase agreement.
Coastal construction control line and other erosion lines
The Coastal Construction Control Line (a/k/a the Coastal Construction Setback Line) places regulatory constraints on construction seaward of the line that provides protection for Florida’s beaches and dunes, while assuring reasonable use of private property. Property may not be modified or constructed seaward of this line without approval from the Florida Department of Environmental Protection. Who Owns Your Beach? Four Lines in the Sand, Feb. 26, 2019, Staff Article, Sanibel-Captiva-Island Reporter, Islander and Current. The Erosion Control Line establishes the boundary of upland ownership by the state when a beach restoration project is constructed. Id. Sand added to the beach seaward of the ECL is owned by the state and held in trust for the public. Id. The ECL is the fixed property line between private and public lands. Id. A landowner does not own this part of the beach in front of the property and the land seaward of this line does not convey with a sale of the adjacent upland parcel. Id. A properly prepared survey will show these lines.
50 percent rule
A full discussion of this topic is well beyond the scope of this blog article. But if your clients intend to remove and replace or significantly remodel the property after closing, it is essential you understand FEMA’s 50% rule. The 50% rule is a regulation of the National Flood Insurance Program that prohibits improvements to a structure exceeding 50% of its market value unless the entire structure is brought into full compliance with current flood regulations. This includes any combination of repair, reconstruction, rehabilitation, addition or other improvements to a building, the cumulative cost of which equals or exceeds 50% of the market value of the building or structure before the improvement or repair is started. And the county or other municipality may have additional rules that apply.
Docks and boat lift inspections
The condition of these items, like any improvements, should be inspected carefully by the appropriately licensed parties, and needed repairs should be negotiated accordingly during the inspection period of the purchase agreement. Also, if no dock exists, but your client would like one, do not assume that one will be permittable solely based on the existence of a dock on a neighbor’s property. This could be a costly mistake. Other issues related to docks to be investigated: (i) rights of replacement in case of damage or destruction of the dock, (ii) third party rights to the dock, and (iii) access rights to the dock.
Base flood elevation and flood insurance
Essentially, Base Flood Elevation (BFE) shows how high water may rise during a 100-year flood (i.e., a flood that has a 1% chance of happening in any given year). Insurance companies compare base flood elevations to the lowest floor of a structure to try and anticipate its chances of experiencing flood damage. This is important for determining flood insurance premiums. If a home’s lowest level is above the area’s BFE, then floodwaters are less likely to reach it, and the insurer may charge a lower rate. All living space and major systems (e.g. plumbing, electrical, HVAC) should be above the BFE. A properly prepared elevation certificate will identify the BFE for the property.
Impact windows
These can reduce insurance rates, and are common practice with new construction, and with condos, many older buildings are upgrading windows to impact ratings at significant cost which results in special assessments accruing to each owner. Often these assessments are missed during the buyer’s due diligence and should always be inquired into, especially in older buildings.
First floor venting
If an enclosed structure in a Special Flood Hazard Area is below the minimum base flood elevation it must have adequate flood venting per the National Flood Insurance Program requirements. Ensuring such venting exists must be determined.
Submerged parcel ownership
Sometimes the seaward land is owned by a third party which could have negative impacts on the usage available (i.e. mooring and navigation). It is vital that a comprehensive title search look at any adjacent seaward parcels to determine potential ownership.
Navigational servitude endorsements/title insurance
Standard title insurance does not cover issues involving riparian rights, and in fact, such rights are an exception to most title insurance policy coverages.
The Navigational Servitude Endorsement provides affirmative coverage against loss or damage suffered by the insured resulting from the forced removal of improvements based upon the U.S. Government exercising its right with respect to its control over navigable waters or lands which were formerly navigable waters because the improvements now constitute an obstruction of the navigable waterways. Consideration of purchasing this insurance (which requires underwriter approval) should be completed prior to closing.
Importance of New Survey and Elevation Certificate
Due to ever-improving technology and equipment associated with surveying property, and the “fluid” nature of waterfront boundaries, it is important to acquire a new survey and elevation certificate, especially for waterfront property. This will ensure the most accurate distances/measurements and whether the property has any gaps between the upland property and the waterfront that might preclude riparian rights of the upland owner. Additionally, most boundary surveys do not include important waterfront lines, like the aforementioned CCCL and the ECL, and without these lines shown, your clients may think they are buying more land in front of the home than they legally are buying, or think they have more room for future construction than they actually do.
Whenever dealing with the purchase or sale of Florida waterfront property, it is always best to seek the guidance of 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.
Authored By: Ryan Featherstone, Esq. rfeatherstone@dunlapmoran.com
Understanding the distinction between the Inspection Period clauses of the two most commonly used contracts (i.e. the FAR-BAR “As Is” and “Standard” Contracts) is vital to your practice. As lawyers, we view every line of any contract as a potential dispute. But nothing is more hotly contested or results in more litigation than the terms of the inspection period. And nothing is more vastly different between the two contracts than this paragraph.
So, let’s dive into this distinction. First, the simpler of the two, the “As Is” contract. In my experience, easily more than 50% of the contracts I see are of this version. I believe the reason for this is because of its inspection period paragraph. It is a simplistic concept, it simply states that during the inspection period (the default provided is 15 days), the buyer is allowed to do any and all inspections of the property and has the right to cancel at any time up to the expiration of the inspection period. In fact, the buyer is not even obligated to do any inspections during this time and can still cancel for any or no reason whatsoever. So, this means the buyer essentially has a “free look” at the property and has a blanket ability to cancel during this period. That is a powerful thing and gives the buyer strong leverage should negotiations be needed for repairs or credits. It also gives buyers comfort that their deposit funds will be protected and refundable should the buyer decide to cancel. It’s important to note here that “As Is” means the seller is not obligated to make repairs and is not warrantying anything. However, this does not relieve the seller of its obligation to disclose to the buyer any and all material facts (especially latent defects) about the property within the seller’s knowledge.
The other version of the contract, what most refer to as the “Standard Contract” has a vastly different inspection period. Quite frankly, it could be talked about over a couple of blogs. Therefore, I’ll keep it basic for these purposes. Essentially, this inspection period requires the buyer to complete inspections before going to the next step (remember, under the As Is contract, the buyer can cancel without even doing inspections). Once inspections are completed, then the contract dictates how things progress from there. Within the contract are 3 pre-negotiated repair limit amounts for 3 categories, as follows: General Repair Items, Wood Destroying Organisms (termites) and Permits. Each of these has a separate amount that is negotiated at the time of the contract. They can end up all being different amounts. For our purposes, let’s assume each category is agreed upon at $2,000. What does this mean?
In my example, if termite issues or permit related matters arise during the inspection period and the cost of remediation of closing out the permits or treating the termites doesn’t exceed the $2000 limits imposed for each, then the seller is obligated to make the repairs/treatment as long as the buyer informs the seller of these issues within the inspection period. This is the same for the General Repair Items notified to the seller during the inspection period. As long as the General Repair Items requested are both covered in the list of items included in the contract and meet the required standard, i.e. the item is not operating in the manner it was designed to operate, and the total requested/covered repairs don’t exceed the repair limit, then the seller is obligated to make the repairs.
However, if any repairs or treatments under the 3 categories exceed their respective repair limits, then it turns to the seller to get the first “bite at the apple.” If the seller agrees to make all the requested repairs, even if they exceed the repair limits, then the buyer remains “locked in” to close, irrespective of the repairs needed, because the seller has agreed to make all the repairs. However, should the seller not agree to make all the repairs, the buyer can either (1) advise the seller which repairs to make, up to the repair limit, and then the buyer accepts all the additional repairs as the buyer’s obligation, or (2) cancel the deal and receive its deposit back.
Ultimately, this section of the contract is significantly more complicated than discussed here, because again, there are 3 categories, each with its own set of rules that apply to how repairs in that particular category are made, and certain deadlines provided for notices, etc., much of which is not covered here. And for the General Repair Items, there are other mechanisms for the seller to dispute the initial buyer’s inspection, which would then result in a second and maybe even third inspection being necessary, along with the costs thereof. But this is well beyond the scope of this article.
If you are tasked with explaining the distinctions between the inspection period clauses of these contracts, or dealing with a dispute over their terms, it is always best to refer your clients to a licensed real estate attorney for explanation and guidance.
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.
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