Get Real about Property! Travels through Real Estate Law by Tom Brodersen, Esq.
Every month we see more chaos in the lives of buyers and sellers of real estate as a result of the FEMA rules. That is partly because of FEMA regulation is evolving. Early enforcement was weak, but these days, it is very strong. First, let’s discuss the basics.
The Federal Emergency Management Agency (FEMA) works to ensure affordable flood insurance is available to homeowners in flood plains (including the Florida barrier islands), through the National Flood Insurance Program (NFIP). The program requires local cities and counties to adopt (and enforce) their own flood ordinances. If their enforcement is weak, cities risk losing FEMA benefits (including flood insurance and disaster relief).
Under the program, housing built after 1973 must be built with the lowest floor of living space above the 100-year base flood elevation (BFE). Housing built before 1973 is generally considered to be “grandfathered in,” but, under what’s known as the “50% Rule,” repair of any damage (regardless of source) or remodeling which exceeds 50% of the buildings fair market value requires bringing the structure into compliance with current standards. That calculation is based on the value of the building structure (not including land value), so the line for invoking the rule is much lower than it otherwise would be.
Any building spaces beneath the BFE can only be used for parking, building access, and limited, incidental storage, so mother-in-law apartments, kitchens, bathrooms and other living spaces are NOT ALLOWED, no exceptions.
The rub is, if you have living spaces which were not property permitted on the first floor of a stilt-home, if discovered by a building inspector, you will likely have to remove them, at your own expense. You will NOT be allowed to use those features, so what you thought was a three-bedroom, two-bathroom home may only be a 2/1. Obviously, that has a huge impact on a homes value.
Sellers need to be careful not to misrepresent the legality of improvements to property they are putting on the market. Any features of homes which are non-conforming must be disclosed to buyers. Failure to make such disclosure can be construed as fraud.
Buyers need to conduct their own due diligence to ascertain the status of improvements to property which they expect to survive closing.
Definitive information about the legal status of existing improvements on property can be obtained from the building department of your local municipality or county.
If you are buying or selling real estate, you will likely be confronted with a disclosure along these lines by your Realtor®. If you aren’t sure you understand it all, you need to talk to a real estate lawyer.
ANDERSON & BRODERSEN, P.A., 350 Corey Avenue, St. Pete Beach, FL 33706 (727) 363-6100 www.PropertyLawGroup.com