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What Lies (Or Crawls) Beneath

What Lies (Or Crawls) Beneath

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Realtors have many  items to check off their due diligence list when assisting their customers with buying and selling properties  in Florida. With the recent storms, new condo laws, and who knows what else will  come, the list seems  longer than ever!  One item that is often overlooked, which can prove to be costly in both time and expense, is the determination of whether or not protected wildlife is present on the property in question; specifically, the gopher tortoise (from now on  referred to as “tortoise(s)”).  The tortoise,  classified as a Threatened Wildlife Species, is an important “keystone” species in Florida, as its burrows are home to the tortoise and  dozens of  other species.  Because of its importance and threatened status, the tortoise and its burrows are protected  federally and by the state of Florida. Due to its protected status and local habitat, realtors should be aware of how  tortoises can affect the purchase and sale of real property  on Florida’s gulf coast.  

How are tortoises protected? 

Florida law provides that you must obtain the appropriate tortoise relocation permit from the Florida Fish and Wildlife Conservation Commission (“FWC”) before  disturbing tortoise burrows or conducting construction activities within 25 feet of any burrow. This generally does not include most residential lawn and landscape maintenance activities but  any actions  that could  collapse the burrows or harm the tortoises. Any violation of this law is a felony and may result in a serious fine and even imprisonment.  

How do I know if tortoises are present?  

You can find tortoise habitats throughout Florida, but they are prevalent in undeveloped or lightly developed inland areas in south Sarasota and Charlotte counties. Local surveyors are generally familiar with the telltale signs of gopher tortoise burrows, which tend to be  slightly wider than an adult tortoise and very deep. Suppose a tortoise or burrow is discovered or suspected- In that case, builders are required to obtain a Gopher Tortoise Survey conducted by a duly licensed surveyor to determine the precise location of the burrows and population density. The number of burrows and tortoises discovered determines the necessary permit.  

What to do if gopher tortoises are present?  

If construction or clearing activities are not going to occur  within 25 feet of a tortoise burrow, then nothing further needs to be done if tortoises are discovered on the property. However, suppose these activities are going to occur within 25 feet- In that case, the tortoises must be relocated, either somewhere else on the property or to another suitable area as determined by the FWC. Before relocating the tortoises, homeowners or builders must  receive the proper permit and engage a licensed professional to capture, remove, and relocate tortoises. Do not try this on your own!   

How does this affect the closing?  

As you might guess, if a permit and relocation is deemed to be necessary, there will certainly be added expenses as well as an extended closing date. How much this will cost and how long it will take will be determined by the number of burrows and tortoises found and the determination of what permit is necessary. However, assuming the parties are in agreement to take the necessary steps to relocate the tortoises, the closing can proceed.  To avoid this situation, Sellers in areas where tortoises may be present should have the property surveyed for the presence of tortoises before  listing the property. If tortoises or burrows are discovered, Sellers must disclose this fact to Buyers. Buyers should also take proper precautions, such as using the appropriate contract and ensuring  experts survey the property during the Due Diligence Period.  

Much of what is discussed above also applies to other threatened species in our area of Florida, such as the scrub jay. If you have any questions regarding how the presence of threatened or protected species might affect your real estate transaction, please do not hesitate to reach out to your trusted local real estate attorney.


Andrew Conaboy, Esq.

Andrew Conaboy, Esq.

Andrew is a partner at Berlin Patten Ebling and manages the Venice office. He focuses his practice on residential and commercial real property transactions.

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