Gregory S. DeMeuse, Esq.
Real Estate Law
Florida property owners, especially along the coast, are commonly a bit nervous as the height of hurricane season hits in late summer but then breathe a sigh of relief if unscathed as the season draws to a close in November. Longtime Floridians can recall more than one near miss, a narrow escape, or even the worst case scenario of bearing the brunt of a hurricane-force impact. In 1992, with winds reaching 175 miles per hour and tidal surges upwards of sixteen feet, Hurricane Andrew devastated south Florida, becoming the costliest hurricane in United States history up to that time. Flaws in building construction became apparent and demonstrated that building standards, governed by local laws and regulations, were insufficient. These deficiencies led Florida lawmakers to enact the Florida Building Code, which became effective in 2002, outlining state-level building standards for local governments to enforce. Local governments now issue building permits, review plans, perform inspections and close building permits in accordance with standards set forth in the Florida Building Code.
Open and expired building permits can become a problem for further development and a deal breaker in real estate transactions. The main concern for buyers is that they may suffer the ramifications of a prior owner’s open or expired permit, such as fees or denial of new building permits. The standard “AS IS” residential contract used in Florida requires sellers to promptly cooperate in good faith to resolve issues with open or expired permits, but provides that the seller cannot be obligated to expend money in doing so. Because open or expired permits often require financial expense to address, this can cause a stalemate between sellers who are unmotivated to address permit issues and buyers who are hesitant to tackle potential permit problems associated with a property. House Bill 447, which took effect July 1, 2019, addresses several issues pertaining to open and expired building permits. For one, it allows a local government to close a building permit after six years if no apparent safety hazard exists. Perhaps most importantly, it protects buyers by prohibiting local governments from denying issuance of a new building permit or otherwise penalizing a subsequent arms-length purchaser solely because a previous owner did not properly close a permit for the property.
In addition, contractors may be reluctant to undertake a project started by another contractor, making it difficult to finish the project and get permits closed in a timely manner if the original contractor is incompetent or no longer available. House Bill 447 clarifies that a contractor is only liable for his or her share of the work performed when working to close a permit, offering a contractor protection from liability for the work of prior contractors, which ought to make it easier for owners to hire a new contractor to take over an uncompleted project. Homeowners could also choose to finish the permitted work themselves, as opposed to hiring a licensed contractor as previously required by the Florida Building Code, since the law allows the owner of a residential property to assume the role of an owner-builder upon approval by local government. Finally, in an effort to prevent search fees related to building permits from becoming overly expensive, the law limits local governments to charging one fee for identifying building permits for a particular tax parcel and prohibits local governments from charging surcharges not directly related to enforcing the Florida Building Code.
These new changes to the Florida Building Code are intended to make it easier, cheaper, and potentially faster to close building permits. By lessening the impact of open or expired building permits and providing for more methods of closure, House Bill 447 allows Floridians to more effectively develop, buy and sell property. This promotes more efficient development and greater success in real estate transactions across the state by virtue of avoiding troubling issues with open and expired permits, while still ensuring that Florida residences are prepared come next hurricane season.
If you have questions regarding building permits or any real estate matter, please contact Greg DeMeuse at 941.748.0100 or gdemeuse@blalockwalters.com.
