Coastal Construction Permitting in Florida

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Do Your Due Diligence 

Do you dream of finally building that beach house at the coast? Maybe put a little dune walkover in front so you can get to the beach easier? Adding a seawall to reduce erosion? Enlarging an existing house for the growing number of friends and relatives whom you haven’t seen in years who suddenly want to visit you? You’re going to need a permit for that. Among other things, you will need a Coastal Construction Control Line (CCCL) permit from the Florida Department of Environmental Protection (DEP). So, if falling interest rates have given you the bug to buy that beachfront lot, there are some considerations you need to make before you sign on the dotted line.  

The stated purpose of the CCCL program is to protect Florida’s beaches and dune systems from development that may harm those systems by increasing erosion, threatening upland structures and property, interfering with sea turtles, or affecting public access to the beaches. The program attempts to balance the right for reasonable use of property with the need to protect these natural habitats. With that in mind, the State of Florida began establishing the coastal construction line in 1984 on a county-by-county basis. Twenty five counties are included. The line is based on historical weather information and is designed to predict areas that would be impacted by a 100-year storm event. With minor exceptions allowed by exemption, any construction seaward of that line requires a CCCL permit. DEP provides a website called Map Direct, where you can locate the property in question and see if it falls under the CCCL program. By the way, Wakulla County does not fall under the CCCL program, as its shoreline is mostly vegetated. 

Jurisdiction for coastal construction is granted by Florida Statute 161.053. Coastal construction is regulated in Florida by Chapter 62B-33 of the Florida Administrative Code. Chapter 62B-33 provides the design and siting criteria that must be met in order to qualify for a permit. If you qualify for a General Permit, Chapter 62B-34 is the regulatory chapter. Essentially, the criteria require that you must build a structure that will survive a 100-year coastal storm event. The structure must be situated so as not to destabilize the dune system, cause other properties to be damaged during a storm, or interfere with nesting sea turtles. 

The design criteria are extensive and the data and drawings you must submit for an application are voluminous. You will therefore need to assemble a team of people to help you obtain a CCCL permit. This may include a civil engineer, architect, environmental consultant, surveyor, and even a landscape architect. Your construction drawings must be signed and sealed, and the survey requirements are way more extensive than a standard boundary survey. You will also have to provide a sea turtle friendly lighting plan, a landscape plan, and many other drawings. 

Before you do all of that, however, it would be wise to locate the property using the Map Direct program, find the reference markers shown on either side, and make a call to DEP’s Bureau of Beaches and Coastal Systems to discuss your proposed project with one of the permit managers. They can tell you if the area is one that has critical erosion concerns or other problematic issues that may make obtaining a permit difficult or cost prohibitive.

 If you decide you want to move forward, remember to get your checkbook out: a single family residence with less than 2,400 square feet can cost upwards of $3,500 in permit fees, once garages, pools, and other minor structures are added. 

Valerie Weeks
The Phoenix Environmental Group, Inc.

Legal Update: Do Not Stop a Home Inspection

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Buyers will insist on the right to have a home inspection by a qualified home inspector. The various forms of real estate contracts used around the state have different time frames related to inspections. They also provide for the consequences from the inspection; i.e., new negotiations or either side can terminate the contract. But Johnson v. Davis disclosures are not excused because the buyer failed to pursue a home inspection.

But more importantly, a seller or a REALTOR® who convinces a buyer not to get the inspection contracted for, may be making a big mistake. That may have been what happened in the appellate case of Southern National Track Services, Inc. (“Purchaser”) v. JD Gilley (“Seller”) in October last year.

That case out of Hamilton County was reversed by the First District Court of Appeal in Tallahassee on a procedural point. It was sent back to the local trial court for further action. But the issue seemed to be that a buyer who does not exercise his right for an inspection does not necessarily forfeit its right to complain about what would have been revealed by the inspection.

The Purchaser contracted to buy some property containing some cottages and a modular structure. It was the modular structure that was the basis of the lawsuit.

Mr. Plezia, an employee of Purchaser, was to be housed on the property, along with other employees, while working for Purchaser in the area. He did a walkthrough of the property before the contract, and had 20 days to have an inspection. The contract also provided that Seller warranted that there were no violations of local ordinances.

Mr. Plezia walked through the property again during the 20 days with the Seller and her daughter. It was undisputed that other than these walkthroughs, Purchaser did nothing to further inspect the property. He did nothing to have it inspected or confirm that the modular structure was constructed for use as a residence.

Months after closing, Purchaser learned that the structure was not built pursuant to local ordinance. And Purchaser noticed that water leaked into the structure, and it was worse during the rainy season.

Purchaser then learned that the local government required many repairs, and learned that the structure was not built pursuant to local ordinance. And it appeared that mold on the walls had been painted over. Purchaser sued.

The trial court granted summary judgment for the Seller, saying that Purchaser did not have its inspection done, and that would have disclosed the problems. In effect, Purchaser could not complain now since it did not protect itself.

And the Seller’s affidavit said there were no violations “to the seller’s knowledge.” But that is not what the contract called for.

To that last point, it is clear that there is a difference when a seller warrants that there are no ordinance violations and then only warrants to the best of seller’s knowledge. Purchaser contracted for the former, but the affidavit Seller got at closing was less than that which was contractually required.

But the biggest point is that the appellate court forgave Purchaser for not getting the inspection when it would have made a difference. The court said that some excuses may be enough to get by that defense.

Here, the purchaser alleged that the seller and her daughter had made representations that, in hindsight, were clearly false. The purpose of such representations, or the intentional non-disclosure of condition, was to assure the closing and avoid the home inspection.

If that was the intent, it worked.

Purchaser closed and did not get the home inspection because, it alleged, it was assured of both the good condition of the structure, and the lawful nature of the construction of the structure. Purchaser wanted to use the cottages and the modular structure for residential purposes; the latter it apparently could not.

The appellate court also pointed to the advertising related to the structure. The real estate advertisement referred to the structure as a two-bedroom home complete with a swimming pool and other accoutrements typical of a residence, not a converted storage shed, as apparently that is what it was.

The advertisement as a residence when it was not gave the appellate court a lot of concern. Because that was a material fact that was in dispute, the appellate court sent the case back to the trial court to hear all of the evidence.

The point to all REALTORS® is this: just because the buyer does not exercise its right for a property inspection does not mean that the buyer cannot after closing sue for matters that were not disclosed, even if they could have been discovered if the inspection had occurred.

But if the misrepresentation, assuming there was one, related to matters that are “obviously false,” a purchaser cannot later sue over the misrepresentation.

So, putting it all together, we know this:

   1. If the seller in the contract warrants that the structure is legal, the seller cannot at closing get by saying that “to the best of seller’s knowledge”—the contract calls for more.

   2. Buyer cannot rely on representations by seller that are “obviously false.”

   3. And most important, if a purchaser contracts for a home inspection to be made, the REALTOR® and seller should insist that the purchaser get that inspection, and stay away from talking the purchaser out of the need for such an inspection.

We do not know the final outcome of this case, since it was sent back to the trial court late last year. What we do know is that the parties are paying attorneys’ fees, and using up time, to deal with this case. And all of that might have been avoided by the purchaser getting the inspection on time, and not possibly having the seller and real estate broker dissuade the purchaser from getting the inspection.

Joe R. Boyd
TBR Legal Counsel
Board Certified Real Estate Attorney
Boyd & DuRant, P.L.

2015 Economic Forecast

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The market for residential real estate in Leon County displayed multiple signs of improvement in 2014, and there are several reasons to believe this trend will continue through 2015, as well.  

One of the more significant developments over the past year occurred on the supply side of the market.  In 2013, Leon County home prices began to rise again and uncertainty surrounding the direction of the overall economy continued to decline. As a result, many owners of non-distressed properties with a desire to sell finally hopped off the fence and listed their homes on the market in 2014. 

Because of this infusion of pent-up supply, Leon County’s current inventory of homes for sale now contains a greater share of non-distressed properties, as well as a wider variety of sizes, qualities, and locations. 

The number of completed home sales in Leon County also increased by a healthy amount in 2014, which coupled with modest price growth strongly indicates that buyers have taken notice. Competition between buyers is expected to increase in 2015, as many factors which dampened housing demand in the Tallahassee area over the past few years continue to return to normal levels.  

Key among these factors are population and employment growth. More people means more housing is desired, and more jobs means more people can fulfill that desire. While employment has been increasing in Florida overall since early 2010, this has only been the case in Leon County since mid-2012. Tallahassee’s government-driven economy was somewhat shielded from the initial blow of last decade’s downturn, but at the cost of getting a late start on its recovery. So the strong recovery that has been occurring elsewhere in the state bodes well for Tallahassee over the next year as government and public university revenue sources continue to stabilize. 

While residential real estate in Leon County could still be characterized as a buyer’s market moving in to 2015, it is also an opportune time to sell for homeowners who wish upgrade and buy elsewhere in the market before interest rates begin to climb again in earnest. Expect home prices to continue to climb over the course of the year as housing demand catches up to supply and ushers in the return of a balanced real estate market. 

Brad O’Connor
Director of Economic Research
Florida REALTORS®

Galloway Scholarship Report

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Editor’s Note: Mary Applegate was awarded a Galloway Scholarship in 2014. Applications for the 2015 scholarship are being accepted through January 30, 2015.

I want to thank the Tallahassee Board of REALTORS® and the Galloway Scholarship committee for providing me a scholarship in 2014 to complete my Graduate REALTOR® Institute (GRI) designation. I strongly encourage every REALTOR® to take the GRI series of courses.

I relocated to Tallahassee from southwest Florida in July 2011, where I worked previously as a REALTOR® from 2005 until 2011. Tallahassee and the surrounding counties are different than southwest Florida—different hospitalities, lifestyles, much less traffic, and totally different contracts. It felt all new to me and, yes, I felt as if I was starting all over again in my real estate career! Goals for me are important, and when I came on board with TBR, I knew I needed to start all over again, so I purchased the REALTOR® Enrichment Program (REP) pass and attended several courses and the weekly marketing meetings.

In 2012, I decided that I was going for my GRI designation, and I passed my GRI II and GRI III classes online. Then, in 2013 GRI classes weren’t available online and it was very hard for me to take time off to complete the classroom training.

In early 2014 I knew I was ready to make a change. I noticed that the Bay County Association in Panama City was offering the GRI I course, the last course to complete my GRI designation, and it was close to home; so, I took seven days off work and took the GRI 1 classes.

What a wonderful learning experience! I am thankful I took the time off for myself. I learned more in the classroom than both online GRI courses previously taught me. The instructors were Patti Ketcham, broker of Ketcham Realty Group in Tallahassee, and Stephanie White, Bay County Executive Director and former REALTOR® member of TBR. Their training provided practical knowledge, legal but common-sense training, and important tools: networking, negotiating, making a presence in the market, knowing your niche, advertising, and continuing education.

If you’re a hands-on or visual learner, or enjoy networking with other REALTORS® in different areas, you may want to consider taking GRI classes. To anyone that is sitting on the fence, I highly recommend the GRI program; you have five years to complete the three courses.

In 2015, I will purchase TBR’s REALTOR® Enrichment Program (REP) pass to keep up with contract changes further my professional development, continue to volunteer on TBR committees, and attend marketing meetings and socials. Networking with my peers is important, as is continuing my education and training, and I also plan to attend FAR and NAR conventions.

Thank you again TBR for providing the Galloway Scholarship; I am ever so grateful!

With appreciation,

Mary Applegate
Rossetti Realty, Inc

President’s Message: Thank You

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To TBR’s REALTORS® and Affiliate business partners: 

Thanks for a great year! We have made great strides in getting recognition for ALL that you do for our local community! It helps bring home our message that REALTORS® are truly locally driven, and there is NO industry that “gives back” like REALTORS® and our business partners. 

We started out the year with our Habitat Build in conjunction with FSU Student Habitat for Humanity to construct a home for a very deserving member of our community. I’m reluctant to start naming those who have helped for fear I will forget someone, but I must thank Sarah Kosturko and Debbie Williams for spearheading this effort. 

This spring, TBR members hosted a water station for the Tallahassee Marathon, which benefits the American Lung Association. Thanks to Nancy Stedman for allowing us the opportunity to assist in this community event and Nathan Newell for being the volunteer coordinator. Next up was a great professional float in the annual Springtime Tallahassee Parade. 

Later in the spring, REALTORS® for Relay continued to excel in collecting donations for the American Cancer Society, raising over $19,000. Once again, the lion’s share was raised by Gerri Roberts, who recently passed away and will be sorely missed by all of us. 

As the summer faded and everyone was getting ready to go back to school, we contributed over 150 backpacks and many pounds of school supplies to Big Brothers Big Sisters, the Children’s Home Society, and the Early Learning Coalition. Many of our members attended the Annual United Way Kick-off program, chaired by our very own Virginia Glass. 

In October, we had a great time at my Presidential Gala at GoodWood. My heartfelt thanks to Trina Searcy, Sonia Jewell, and the entire Social Committee for organizing and coordinating a successful party and fundraising event. The party featured DeepWater band, 101 Catering, Vegas Casino Nights, and games and raffles, including our fun Diamond Plot. As most of you know, I lost both of my parents to cancer. This year our community also lost our little buddy Trent McElroy at age ten, and in the TBR community we know past-presidents who have battled cancer. Consequently, the American Cancer Society was my chosen charity to be the beneficiary of your donations—an amazing $5,000 for local services and research to help find a cure. 

November, we launched our inaugural “Hoofing it for Habitat” 5K run at Centerville Conservancy, and its success is thanks to Mariela Santurri, Christie Orros, Nancy Stedman, and many other volunteers. This was actually Mariela’s idea, and will kick off our 2015 Habitat Build. We ended up with 123 participants and about 30 volunteers—pretty good for our first time out the chute. 

Premier’s Annual Thanksgiving Together, which Pepper Ghazvini started in 1997, was TBR’s featured volunteer spotlight for November, and in December our members have the chance to help our community through Christmas Connection, the Salvation Army’s “REALTOR® Ring a Bell,” and Toys for Tots. 

Another one of my initiatives this year was to improve communication and cooperation with some of our other local organizations, including The Chamber, Tallahassee Builders Association, Mortgage Bankers Association, Women’s Council of REALTORS®, Springtime Tallahassee, and Visit Tallahassee. We attended many of their events—the Chamber Retreat in Amelia Island, TBA “Hardhat Happy Hours,” various panels at meetings, etc.—and they attended some of our REALTOR® Socials and other events. I hope that this may lead to some joint ventures with these organizations in the future. 

I’m disappointed that we weren’t able to get more of our REALTORS® to contribute the minimum of $15 “fair share” amount to the REALTORS® Political Action Committee (RPAC) to increase our participation levels. I’m not sure how much all of our members realize the impact of RPAC on their profession; not contributing is like showing up at a potluck dinner with nothing but your appetite!  However, we did end the year with 26% of our members investing in RPAC and raising more than $32,000 (208% of our goal).  Thank you to all the members that did choose to invest in their profession. 

I enjoyed getting to know more of you REALTORS® and Affiliate business partners on a more personal level. Part of what I love about REALTORS® is we aren’t so much competitors—we cooperate with each other, we depend on each other for our livelihoods.  

Thanks very much to all of the past leadership of TBR, particularly my mentor, Immediate Past-President Frank McClean, for guidance and suggestions. 

I think the Number One thing that I learned from my year as President is how much our staff does for us! Our CEO, Steven Louchheim, is so on top of every aspect of our industry; we are truly blessed to have him on our team. He makes the leadership process a smooth transition from president to president, with the consistent guidance that assures all of us a good year. Susan Ray with her behind-the-scenes suggestions and influence, helps keep us on track. Paul Galloway keeps us on the cutting edge with our extensive technology, and Nicholas Propst is quick to assist members at the helpdesk. Sonia Jewell makes sure that we stay on task with all our social and education responsibilities, and Jo-Anna Dolloff is ready to help our membership, whether it’s someone just joining or veteran REALTORS® and Affiliates.  Keri Matewa is always friendly and informative: “It’s a beautiful day at the Tallahassee Board of REALTORS®!” 

And if you’d like, you can thank me for helping turn the real estate market around during my Presidency! 

Jeffrey D. Doxsee, Sr.
2014 TBR President
Capital Property Consultants

2015 Leadership Academy

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A message from the Leadership Academy Deans, Debbie Kirkland and Mike Ferrie 

Debbie: Now is your chance to answer the call of active engagement in a leadership role in your industry. The Tallahassee Board of REALTORS® Leadership Academy is an introduction to the structure of our association, the challenges of our industry, and the role leaders play in the forward momentum of the association that provides all members with business growth and development benefits. Be a part of the Leadership in our association! Learn where you fit and how you can effect industry change and influence others.  This class will have fun, and is guaranteed to produce agents of change! 

Mike: Every couple of years the Tallahassee Board of REALTORS® offers the Leadership Academy to better serve and educate those that are interested in our local board as well as serving at the state and national levels. Going through the academy will give you insight into the day-to-day operations—and what teamwork is required—to make a successful board. In 2015 we are looking for ten to twelve candidates who would like to get involved, learn how to better serve our community, and build a prosperous business for themselves. TBR is looking for key individuals with the desire to serve and to build a successful career. Time to apply is limited, as is the amount of participants in the academy, so don’t wait until someone else gets ahead of your next career move! 

Read the application and submit it by January 12, 2015 to be considered for the 2015 Leadership Academy.

Legal Update: The Future of a Golf Course

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In Miami, the local circuit court has recently ruled that the owner of the Calusa Golf Course is no longer bound by a covenant that the property could only be used for a golf course. Adjoining homeowners are livid. 

The owner intends to convert the land into a top-notch hospice facility. Zoning is still an obstacle for the owner, as is the likely appeal of the trial court’s ruling. But unless things change, there will be development on the land and the 248 homeowners in the Kendall area will see their home values fall. The golf course closed in 2011 after operating at a loss for six years. 

For the last eight years, more golf courses have closed than have opened. The National Golf Foundation reports that the number of people playing golf peaked in 2003 and has since fallen 16 percent. The continued economic viability of golf courses is in danger. Locally, at least one golf course closed completely, although it has reopened. 

At the same time, the value of such land has risen. New development in Florida is starved for good land, as few new developments were completed during the recession. And golf courses that are under restrictions find that those restrictions are expiring. 

That was the case at Calusa. There was a 1968 restriction that the land could only be used for a golf course, and that was to last for 99 years unless 75 percent of the adjacent homeowners voted to lift it. Further, the county had gone along with that restriction in permitting the golf course. 

But the court ruled that the Marketable Record Title Act defeated that restriction and the land was no longer burdened by that limitation. The court went further and said that by embracing the requirement of a 75-percent vote by the adjoining property owners, the county had abdicated the zoning process to the residents. 

The golf course owner had tried to obtain the consent of the homeowners, it is reported. The developer offered homeowners $50,000 each to make up for any loss in value and offered to build a three-mile park around the development. When that failed, the owner sued the homeowners and the county, and won, at least at the trial level. 

The importance of that ruling really is not whether the land will continue as an open area, golf course or not, and not whether the Marketable Record Title Act controls. It is really the frustration of the abutting land owners over the fact that they did not have any rights, other than opposing rezoning, concerning land that was vital to them and the value of their land. 

We have opined for decades that homebuyers and REALTORS® should never, ever assume what will happen to abutting property owned by others. This has happened when homebuyers value an adjacent forest only to have it destroyed with the construction of schools, homes, and power stations. 

If it is important to you, then you need to check it out. And even then, circumstances may change. The public boat ramp you value may close. The quiet you relish may come with a harsh awakening. But what is really important is at least to perform some investigation into abutting property and its uses; do not just assume. 

Lastly, it is probably prudent under Johnson v Davis for a home seller and REALTOR® to now disclose to a prospective buyer any information that suggests that important adjacent or nearby land may be about to be used in a different manner, if it is substantial and may adversely affect the value of the seller’s home. 

Joe R. Boyd
TBR Legal Counsel
Board Certified Real Estate Attorney
Boyd & DuRant, P.L.

Volunteer Spotlight: Jim Taube, Salvation Army

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The Salvation Army was founded in 1865 in England by William Booth, who preached hope to desperately poor congregations. The Salvation Army continues to meet human needs without discrimination.

Today, the Salvation Army is best known for its emergency disaster services, providing not only food and water but hope and comfort in a time of distress. However, the Salvation Army also provides adult rehabilitation for those struggling with drug and alcohol addiction; prison ministries that offer counseling to inmates; elder services; and veterans’ affairs services. In recent years, the Salvation Army has played a big role in combating human trafficking.

Most people are familiar with the organization through their Red Kettle Campaign. This annual fundraising activity is probably the one that requires the most manpower. Although many of the hours spent ringing the bell for are covered by volunteers, many hours are also covered by paid workers. While this provides temporary jobs for a few, often there’s not enough money collected in a day to pay their salaries. This is why the need for volunteers is so critical.

In the past two years TBR has participated in the “REALTOR® Ring-A-Bell” day. As a member of the local Salvation Army Advisory Board, I am again soliciting the help of TBR members to ring bells at Red Kettles in several Tallahassee locations. This year Wednesday, December 17 has been chosen as our REALTOR® Ring-A-Bell day. We are asking that you volunteer an hour or two for this worthy cause that helps so many people.

The money raised in these few short weeks around Christmas goes a long way towards supporting the local Salvation Army programs throughout the year, including the children’s summer music camp. An hour or two spent ringing a bell is fun and rewarding. Enlist the help of others in your office or pair up with a friend or associate to help this worthy cause. This year we have chosen to focus our efforts on the kettles at five stores to make the most efficient use of everyone’s time. Bell ringing times are from 8 a.m. to 8 p.m., Wednesday, December 17. Even if you can only do it for an hour, it will be a big help.

This year the locations we have chosen are:

Publix (Centerville) 2111 Capital Circle NE
Publix (Killearn) 3521 Thomasville Rd.
Publix (Mahan) 3111 Mahan Dr.
Publix (Park Ave.)  101 N. Blair Stone Rd.
Walgreens (John Knox) 2349 N. Monroe St. 

To reserve a time to volunteer at a Salvation Army Red Kettle, please contact the following:

Jim Taube
NAI TALCOR

Legal Update: A Free Home, Maybe?

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In mid-October, the appellate court for North Florida and based in SouthWood handed down three rulings that hammered lenders who come to court unprepared. In reversing three foreclosures because the lenders’ witness was unqualified to testify, two of them were with prejudice, which means that the lender cannot again pursue the foreclosure, having the possible effect that the homeowners got a free home. 

The lenders involved in the three different cases were Bank of New York Mellon, Deutsche Bank National Trust Company, and Nationstar Mortgage, LLC. The latter involved whether Nationstar even held the note and mortgage, and resulted in that case being the only one sent back to the trial court for some further proceedings. 

The legal principle is simple. When you go to court as the plaintiff, you only have one chance to prove your case. If you don’t have enough evidence, or you don’t have the right witness, you lose. If you somehow win in front of the local judge, the appeals court will reverse the ruling and let the homeowner win. In such cases where the lender has already been to court, they do not get a “mulligan,” a do-over of the trial. They are left with a mortgage on the property that they cannot enforce. 

No one deserves a free house. It is a nice idea if you or I are the ones getting the free house. But in reality either the stockholders of the lender pay for that home or, if the loan is government insured, the government will pay for the house. 

But the message to lenders and other plaintiffs is to come to court prepared. 

In the 17-page opinion in Burdeshaw v. BYN Mellon, the lender lost because its employee, a mortgage servicer, had the loan printout but knew nothing about where the payment information came from that predated the lender obtaining servicing rights on the loan. There are four elements that have to be proven in order to get the court to look at the bank printout. The bank’s employee could not meet those elements. 

And a similar opinion was issued by the Fourth District Court of Appeal in West Palm Beach in 2013, but it only applied to condo associations. With these new rulings, all lenders are covered. 

The pressure on lenders to complete foreclosures is mounting. In 2010, the Attorney General attacked some of the tactics used by attorneys for the lenders, and some of the servicing companies. New foreclosure filings came to a halt when a new foreclosure law required the lender to have the promissory note before it started the foreclosure process. Many could simply not find the note. 

Now the foreclosures have resumed and chief circuit judges have special money and special instructions to clear out the backlog, one way or the other; i.e., grant the foreclosure or dismiss it.

With that in mind, some judges have erred on the side of letting in the questionable evidence. The First District Court of Appeal, in three opinions issued over two days by various judges at the appeal court, made it clear that (1) evidence in foreclosure cases has to meet the same standard as any other lawsuit, and (2) there will be no do-overs where the lender had its day in court and just came to court unprepared. 

Joe R. Boyd
TBR Legal Counsel
Board Certified Real Estate Attorney
Boyd & DuRant, P.L.

Phase I Environmental Site Assessments

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Do Your Due Diligence: Environmental Assessments of Commercial Properties 

The purpose of a Phase I Environmental Site Assessment (ESA) is to determine if a property has any potential environmental issues that may create a liability for the purchaser. It is normally required by a lender for a commercial property. The Phase I ESA is typically one of the early steps performed during the due diligence process of land acquisition. 

Phase I ESAs are conducted in accordance with the American Society for Testing and Materials (ASTM). In a nutshell, the assessment consists of state and federal database searches, historic aerial photography review, interviews with former and current landowners, a physical site reconnaissance, and a report documenting the findings and recommendations. Sampling of water, soil or air is typically not performed during a Phase I, but may be recommended as the next course of action if contamination is suspected. 

For the most part, Phase I ESAs are concerned with the possibility of hazardous chemicals that may be in the soil or groundwater of a property. Such contamination can originate from adjacent properties such as dry cleaners, gas stations, or other industrial businesses. They also might originate from the client’s property in the form of leaking underground storage tanks or previous land use. Previous or current agricultural practices can also play a role from the use of fuel tanks, cattle dipping vats, insecticides, and pesticides. 

Here are some items to think about when hiring a professional to conduct your Phase I ESA:  

  • Hire an experienced consultant with an environmental science background. Phase I ESAs cover a broad variety of scientific disciplines, such as geology, chemistry, and biology. Ask them how many Phase I ESAs they have prepared in the past. 
  • Make sure they go onsite and inspect the property. Although they will look at a variety of maps and historic aerials, nothing beats feet on the ground. An area that was fine yesterday may have become a dumping ground for someone’s old tires today. 
  • If there are structures or old buildings on the property, ask the consultant to determine the potential for asbestos or lead-based paint. While a Phase I ESA typically does not include testing for these items, it would be good to know if the potential exists, especially if your client is contemplating demolition activities. 
  • Be sure to provide a contact person to discuss the parcel’s history with your consultant. Owner interview is a part of the ASTM process and is very important in understanding past property uses and determining when further information might be useful. Interviewing previous property owners is another critical item that will allow the consultant to ascertain if previous uses of the property may have impacted the property. 

A careful review of the regulatory agency databases is another important part of a Phase I ESA that will oftentimes shed light on the subject property and adjacent property uses; e.g., registered underground storage tanks may exist on an adjacent property.  

Prices to conduct a Phase I ESA vary widely, from $500 to $2,500 or more for larger parcels. This is one area where you definitely get what you pay for. Just the regulatory agency database search alone is normally upwards of $200. So if a person quotes you a price of $500 to assess your 500-acre property for commercial development, you can be pretty sure they aren’t going to do a very thorough job.

Remember, a Phase I ESA protects your client from having to undergo costly cleanup work to correct a problem that may have been caused by someone else. The potential for litigation is also high if contamination is found. 

Valerie Weeks
The Phoenix Environmental Group, Inc.