Ready or not, it is that time of year again! The time of year when residents of the Gulf Coast of Florida revisit their storm preparation plans, restock their supplies, and hope for a quiet hurricane season. However, with the National Oceanic and Atmospheric Administration predicting an 85% chance of above-normal Atlantic hurricane activity this season — officially beginning on June 1st and lasting until November 1st — the chances of a quiet season happening does not seem to be a good bet to make this year. In addition to preparing homes and supplies, Florida Realtors also need to be prepared to deal with the consequences that storms tend to have on real estate transactions in Florida, as we have experienced in recent years following hurricanes Irma, Ian, Idalia, and several others (no more “I” storms please!). By understanding the provisions of the Far/Bar contracts regarding this topic and having a plan of attack in the unfortunate case when storms do disrupt transactions, Realtors can prevent transactions from being blown away by the storm. The following are important provisions of the contracts to keep in mind this hurricane season:
1. Risk of Loss
One of the most common questions we receive from Realtors and their customers following a storm resulting in damage after a property is already under Contract is, “What now?” This is often a difficult question under difficult circumstances, but the good news is the Far/Bar contracts do provide answers. Section 18(M) provides that:
- If, after the Effective Date, but before Closing, Property is damaged by fire or other Casualty Loss and the cost of restoration (including pruning and removing damaged trees) does not exceed 1.5% of the Purchase Price, the cost of restoration shall be an obligation of Seller and Closing shall proceed pursuant to the terms of the Contract. If restoration is not completed as of Closing, a sum equal to 125% of the estimated costs to complete restoration will be escrowed at Closing. If the cost of restoration exceeds 1.5% of the Purchase Price, the Buyer shall elect to either take the Property “as is” together with the 1.5% or receive a refund of the Deposit.
2. Force Majeure Clause
Even if a storm does not cause damage to the Property, it may still disrupt a Buyer or Seller’s ability to exercise or perform their rights or obligations under the Contract. In such event, Section 18(G) provides that the parties shall not be liable to each other for damages “so long as performance or non-performance of the right or obligation, or the availability of services, insurance, or required approvals essential to Closing, is disrupted, delayed, caused or prevented by a Force Majeure event.” The definition of “Force Majeure” in the Contract includes hurricanes, floods, extreme weather, and many other “acts of God”. Additionally, all time periods affected by the Force Majeure event will be extended up to 7 days after the Force Majeure event no longer prevents performance under the Contract.
3. Insurance
As we have covered in a previous blog (link here), it is imperative this time of year that Buyers ensure that their home owner’s insurance policies are bound as quickly as possible. This is due to the fact that insurance providers may suspend the binding of insurance policies when a named storm is within a certain distance from Florida. They may also continue the said suspension for several days after the storm has passed. Of course, the Force Majeure Clause discussed above may be used in order to extend a deadline or even the Closing Date if insurance cannot be bound due to a storm, but it is best not to rely on that and instead ensure that insurance is bound as early in the process as possible.
While storms may cause damage and disruption this hurricane season, Realtors who are well versed on their effect on real estate transactions and remedies available to their customers can not only help keep transactions together but can also be a welcome source of calm in an otherwise stressful situation. If you need assistance with or have any questions about this topic, please do not hesitate to reach out to your trusted local real estate attorney.
