County flood regulations approved by Monroe County commissioners in late 2022 took effect March 7. With them came changes to the definition of an accessory structure and several updates, such as one that stipulates the size of an accessory structure.
Not new to the code, however, is an inspection that’s required of an elevated home’s enclosed area that’s located below base flood prior to the sale of property in unincorporated areas of Monroe County. Known as the Transfer of Ownership program, the rule has been in effect since 2012.
Inspections of enclosed structures below flood, however, weren’t regularly performed by the county’s building department, which lacked the capacity to perform the task.
For many Keys title and real estate agents, the inspection requirement that carried forward into the new ordinance came as a surprise. Some within the Keys real estate world, mainly the ones who conduct business in areas of unincorporated Monroe County, said they were made aware of the inspection requirement from an email by the Florida Keys Board of Realtors several days after the ordinance took effect. And several members on the county’s Contractors Examining Board noted that they weren’t particularly familiar with it during a March 14 meeting.
County commissioners acknowledged the confusion within the real estate community over the rule and concern over how it would affect upcoming closings. As a result, the BOCC put a temporary bandage on the issue by approving a resolution that shields home sellers and buyers from any lawsuits in regard to the inspection program through the current and previous ordinance.
Commissioners also set a special April 6 meeting at 10 a.m. at the Marathon Government Center to further discuss the matter.
“Nobody was preparing for it to take effect,” Mayor Craig Cates said.
Through the Transfer of Ownership program, Karl Bursa, county senior floodplain manager, said a buyer or a seller would need to request an inspection if they have an enclosed structure below flood. County building staff would visit the home and document the enclosure. Once that inspection concluded, documentation would be provided stating whether the enclosure is in compliance with county standards.
If a downstairs enclosure was found to be illegal and unpermitted work, Bursa said there would be no code compliance case brought against the owner where a teardown would be required of the enclosure. But it would affect the new property owner’s ability to obtain a permit if that enclosure was identified by the county as illegal and unpermitted.
Bursa said the inspection requirement was put in place to inform the buyer whether the downstairs enclosure complies with current county regulations.
Key Largo resident Marlen Weeks is a title agent. She said she found out about the new ordinance and the inspection program through a friend who encouraged her to watch the March 14 Contractors Examining Board meeting. Weeks was critical of county staff for not reaching out to title agents, loan officers, real estate agents and local boards to hold presentations and present information. She said the industry is trying to figure out how to move forward while the county works on the details needed to carry out the inspections. She asked the BOCC to change the effective date of the inspection until the building department has forms and staff in place, as well as a timeline for reporting.
“If these revisions were adopted in November, why isn’t the process already in place? You have caused unnecessary chaos in our industry, which has real-world consequences for all of us.”
Changes to the code through an ordinance began with three community meetings to unveil the proposed changes. They were held in December 2021 and in January and February 2022. The proposal then went through the county’s Development Review Committee, the planning commission and the county commissioners. The BOCC approved the ordinance on Nov. 15, 2022.
Emily Schemper, county planning director, said the county doesn’t normally notify every single party who may be affected by an ordinance.
“They’re publicly noticed when there’s an adoption hearing. In November at the adoption hearing, it was noticed. And Karl went through all the community meetings.”
Explaining the ordinance adoption process leading up to the March 7 effective date, Schemper said there’s a 30-day appeal period once the BOCC gives approval. It’s then sent to the state for review. The state then issues a final order, which triggers a 21-day challenge period. If no one issues a challenge, the ordinance takes effect.
“It was not a specific date set up by the county for that ordinance,” she said. “That inspection requirement isn’t new. It’s on the books.”
County Commissioner Michelle Lincoln questioned whether anyone in the real estate industry requested the Transfer of Ownership inspection. Rick Griffin, county building official who appeared on Zoom, replied in short, “not to my knowledge.” Schemper said she wasn’t sure if that was true.
“There are records of inspections,” she said.
Tom Wright is a board-certified real estate attorney. He told commissioners that he was part of the committee that drafted the Florida FAR-BAR contract, or a standard form agreement used in real estate upon a sale. He said the contract already requires a disclosure of any unpermitted and illegal work from the seller to the buyer. And there are strict civil penalties for a seller who doesn’t comply with those contract requirements.
“I describe it to some people as killing a fly with an atomic bomb,” he said of the county’s ordinance on downstairs enclosure inspections. “It just seems like a really onerous requirement to put on to a seller. If they have complied with the contract, they provide a written disclosure of these issues to the buyer.”
Commissioner Holly Raschein said she’s looking forward to future conversations and work to resolve the matter.
“We never, to use somebody else’s quote from this weekend, would want to weaponize the industry for something like this,” she said.
Also included in the updated flood ordinance is a prohibition of breakaway walls in VE flood zones. But coverings made out of lattice or screening are allowed. Downstairs enclosures would also be limited in size to 299 square feet. Commissioners told staff to examine changes to the code to allow opaque breakaway walls for downstairs enclosures.
