New Law Requires Disclosure Statement Regarding Coastal Properties

Beginning July 1, 2006 all Buyers of properties either partially or totally seaward of the State Coastal Construction Control Line MUST be provided a Coastal Properties Disclosure Statement upon execution of the contract. This new statement is required to indicate that the coastal property may be: a) subject to coastal erosion; b) subject to federal, state and local regulations concerning coastal construction; c) affected by beach renourishment activities; and/or d) restricted by marine turtle regulations.

Along all of Florida ’s sandy beaches, the Florida Department of Environmental Protection has an established a jurisdictional line called the Coastal Construction Control Line (“CCCL”). The CCCL is intended to define the areas of Florida shoreline which are subject to severe fluctuations due to: storm surge, storm waves, flooding or other predictable weather conditions. Once the CCCL has been established within a coastal county, almost all construction seaward of the CCCL is regulated by the state and requires special permitting from the Florida Department of Environmental Protection.

Prior to this new law becoming effective, a Seller of coastal property was merely required to inform a Buyer whether the property being purchased was located partially or totally seaward of the CCCL. This information was allowed to be disclosed as late as the time of closing. Typically, by the time the existence of the CCCL was disclosed, it was too late to halt a transaction or seek additional information regarding the suitability of the property for development.

Under the old law a Buyer was permitted to waive their right to be informed of the location of the CCCL. This waiver was typically agreed to by unwitting Buyers who did not understand the significance of the restrictions imposed upon properties located seaward of the CCCL.

Under the new law, an amendment to Section 161.57, Florida Statutes, (which is reprinted in its entirety below), the following disclosure statement must be included, either in the contract, or as a separate document, prior to the execution of the contract by both parties (the Effective Date) for any property located totally or partially seaward of the State Coastal Construction Control Line:

“THE PROPERTY BEING PURCHASED MAY BE SUBJECT TO COASTAL EROSION AND TO FEDERAL, STATE, OR LOCAL REGULATIONS THAT GOVERN COASTAL PROPERTY, INCLUDING THE DELINEATION OF THE COASTAL CONSTRUCTION CONTROL LINE, RIGID COASTAL PROTECTION STRUCTURES, BEACH RENOURISHMENT, AND THE PROTECTION OF MARINE TURTLES. ADDITIONAL INFORMATION CAN BE OBTAINED FROM THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, INCLUDING WHETHER THERE ARE SIGNIFICANT EROSION CONDITIONS ASSOCIATED WITH THE SHORELINE OF THE PROPERTY BEING PURCHASED.”

While the new law makes it clear that the failure to provide the required disclosure statement will not impair the enforceability of a contract or create a right of rescission, the Florida Department of Business and Professional Regulation has advised that a broker or real estate agent who had actual knowledge that the property was located in an area requiring the disclosure, and who failed to make such a disclosure, may be found guilty of violating Section 475.25(1)(b), Florida Statutes for committing misrepresentation or concealment, and may be punished under the provisions of Section 475.42, Florida Statutes.

This new disclosure law reinforces the need to have due diligence inspections and the property closing performed by an attorney with specialized expertise in waterfront property and coastal construction law. Providing a prospective Buyer of coastal property with a clear understanding of how to comply with federal, state, and local regulations will ensure that the sale or purchase of property located in the Coastal Zone takes place both quickly and seamlessly.

As always, any real property closing performed by David M. Levin, Esq. includes the due diligence inspection, involving an evaluation of federal, state, and local coastal construction regulations, AT NO EXTRA CHARGE.

Full Text of New Law

Florida Senate – 2006 SB 1948
CODING: Words stricken are deletions; words underlined are additions.
16 161.57 Coastal properties disclosure statement.–
17 (1) The Legislature finds that it is necessary to
18 ensure that the purchasers of interests in real property
19 located in coastal areas partially or totally seaward of the
20 coastal construction control line as defined in s. 161.053 are
21 fully apprised of the character of the regulation of the real
22 property in such coastal areas and, in particular, that such
23 lands are subject to frequent and severe fluctuations.
24 (2) At or prior to the time a seller and a purchaser
25 both execute a contract for sale and purchase of any interest
26 in real property located partially or totally seaward of the
27 coastal construction control line as defined in s. 161.053,
28 the seller must give a written disclosure statement in the
29 following form to the prospective purchaser which may be set
30 forth in the contract or in a separate writing:

1 The property being purchased may be subject to
2 coastal erosion and to federal, state, or local
3 regulations that govern coastal property,
4 including the delineation of the coastal
5 construction control line, rigid coastal
6 protection structures, beach nourishment, and
7 the protection of marine turtles. Additional
8 information can be obtained from the Florida
9 Department of Environmental Protection,
10 including whether there are significant erosion
11 conditions associated with the shoreline of the
12 property being purchased.
13
14 (3)(2) Unless otherwise waived in writing by the
15 purchaser, at or prior to the closing of any transaction where
16 an interest in real property located either partially or
17 totally seaward of the coastal construction control line as
18 defined in s. 161.053 is being transferred, the seller shall
19 provide to the purchaser an affidavit, or a survey meeting the
20 requirements of chapter 472, delineating the location of the
21 coastal construction control line on the property being
22 transferred.
23 (4) A seller’s failure to deliver the disclosure,
24 affidavit, or survey required by this section does not impair
25 the enforceability of the sale and purchase contract by either
26 party, create any right of rescission by the purchaser, or
27 impair the title to any such real property conveyed by the
28 seller to the purchaser.