The County’s Code Enforcement Special Magistrate finds the innocent purchasers to be guilty of violating the County’s “FEMA” Code even though it is undisputed that the new owners had nothing to do with creating the violations.

The County argues, and the Special Magistrate agrees, the County’s “FEMA” Code is a “strict liability” ordinance, making an innocent purchaser, who purchased the property without any notice of the violations, responsible for demolishing the ground floor improvements. Even though the information contained on the Sarasota County Property Appraiser’s webpage played an important role in inducing your buyers to purchase the property, the Special Magistrate, relying upon a Monroe County case, Monroe County v. Carter, the Special Magistrate finds that the information in the records of the County Property Appraiser should not be imputed to the County Code Enforcement office.

In other words, even though the County Building Department can use the Property Appraiser’s records as evidence of a violation, an innocent purchaser may not use the Property Appraiser’s information in their defense.

The Special Magistrate orders your buyers to demolish the ground level improvements and return the ground floor area to storage space. In so doing, your buyers will have spent approximately one-third of the purchase price on space they cannot use for living purposes.

How do you protect your future buyers from the same fate as those described herein? It is not enough to have the title work and closing performed by a lawyer who is not an expert in waterfront property law. A lawyer with expertise in this field would have known that something was wrong with the ground level improvements. In the absence of any permits of record with respect to the ground level improvements, the only way to protect purchasers from buying a potentially illegally non-conforming residence is to insist that the Sellers produce building permits for the ground level improvements.

If the Seller balks, then seek a written determination from the local government Building Official that the ground level improvements are legal. If that cannot be obtained, then either the purchase price must be adjusted to take into consideration the illegal living space and compensate the buyer for assuming the risk, or the buyer should be encouraged to terminate the contract.

It should also be noted that according to most Contracts, violation of government regulations constitutes a title defect that must be cured by the Seller upon written notice by the Buyer. If the Seller is allowed to choose the lawyer who will serve as the Title Agent, what is the practical likelihood that the Seller’s lawyer will find the illegal nature of the property and counsel the Buyer to notify the Seller of the title defect?

Buyers of waterfront property need knowledgeable lawyers whose primary objective is to protect the interests of the Buyers. And that includes title and closing services.

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