How many times have you’ve seen or heard the term “non-conforming” used to describe improvements built below the base flood elevation (BFE) with properties situated in Flood Zones A and V?

Whether it is non-conforming or illegal will depend on when the house was constructed.  If the house was built prior to January 1, 1975, then that downstairs rec room is legally non-conforming.  Otherwise, the downstairs rec room is illegal and the term non-conforming should not be used in the real estate marketing materials to describe the illegal downstairs rec room.

What does this mean for a buyer purchasing the home with the illegal downstairs rec room?  The buyer should be aware of the following:

  1. When the buyer goes to sell the property, the buyer will have to disclose the illegal downstairs rec room to the next buyer since the improvements were completed without the appropriate permits and in violation of FEMA.
  2. If the buyer is planning on doing any renovations or additions to the property after closing, the illegal improvements will probably be discovered at time of permit inspection in which event the county would require the buyer to convert the downstairs rec room back to storage area.  This would require the buyer to remove any non-waterproof drywall and floor coverings, wall partitions, electrical, and built-in shelving, etc.  In addition, the buyer could face penalties and fines for the unpermitted improvements.
  3. Even if the buyer isn’t planning on making any improvements, the county could still discover the illegal downstairs rec room when the county does periodical inspections.  In order for the county to participate in the National Flood Insurance Program, the county is required to enforce the FEMA flood regulations.  Consequently, the county will periodically inspect flood zone properties to make sure the properties are in compliance with FEMA.
  4. Buyer could have to pay a higher insurance premium regardless that the lower level would not be insured.

What should a buyer do when purchasing property in a Flood Zone A or V?

The buyer should obtain an elevation certificate by a registered land surveyor confirming that there are no improvements built below the BFE.  Under the standard FR/BAR real estate contract, a buyer has a specified time period (20 days if left blank) to obtain an elevation certificate and terminate the contract if the lowest floor elevation of the living area is below BFE.

With the housing market in a steady growth pattern over the last few years and interest rates on the lower end of the spectrum new home construction and residential remodels have been more prominent.  Over the last six (6) months we have seen an increase in unpermitted improvements (Example, remodeling plans reflect 2 bathrooms but the home has 3 bathrooms) especially in residential remodels. Although Sellers are required to disclose known matters/issues to unsuspecting buyers this does not always occur.  Most Buyers feel that unpermitted improvements will be discovered by their home inspector but we have found that even the most seasoned home inspectors have a tough time in determining if an improvement is unpermitted without analysis of the approved building plans.

Paragraph 12(d)(i) of the FR/Bar Contract allows a Buyer to inspect and exam records and documents made to determine whether there exists any open or expired building permits or unpermitted improvements to the Property.  All of this needs to be performed during the Inspection Period.  As part of the contract negotiation it may be helpful to include language under “Additional Terms” requiring the Seller to deliver any and all approved building plans (especially for a recent residential remodel) within the Inspection Period (make sure you give yourself enough leeway to accomplish the review during the Inspection Period).  If the Seller does not have or is unwilling to deliver the approved building plans then visit the local building department to obtain.  After you receive the approved building plans we generally recommend that a Buyer engage a Florida licensed Building Contractor to review the plans and conduct a walk-through of the property to make sure all improvements on the plans were properly built and permitted.  Any issues need to be disclosed to the Seller, in writing, during the Inspection Period. Should you have any questions regarding the foregoing, we urge you to consult with your real estate attorney.

Sincerely,

Berlin Patten Ebling, PLLC

Video credit: Dan Guarnieri, Esq. dguarnieri@berlinpatten.com

This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

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