Resolution 045-2024 Resolution No. 045 - 2024
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY FLORIDA
RECOGNIZING THAT THE IMPLEMENTATION OF
ORDINANCE NO. 026-2022 HAS BEEN HAMPERED BY THE
LACK OF CAPACITY OF THE BUILDING DEPARTMENT TO
CONDUCT INSPECTIONS REQUIRED BY ORDINANCE 026-
2022 AND/OR 010-2012 AND RECOGNIZING THAT FOR
PROPERTIES THAT CLOSED BEFORE JULY 31, 2024
WOULD HAVE A DEFENSE OF NON-AVAILABILITY OF A
CONDITION PRECEDENT AGAINST ANY CLAIM
ASSERTED BY A BUYER FOR NOT HAVING AN
INSPECTION.
Whereas, the Board of County Commissioners of Monroe County (the Board),
pursuant to its legislative authority under Article VI II, Section 1 of the Florida Constitution
and Chapter 125, Florida Statutes, enacted Ordinance 026-2022 on November 15, 2022;
and
Whereas, that Ordinance updated the inspection upon transfer requirement that
had been in existence since 2012 and which is currently codified in Section 122-15 of the
Land Development Code; and
Whereas, Section 122-15 of the Code imposes a requirement that prior to the
transfer of residential property that includes an elevated residential structure with below
base flood enclosed area, commonly referred to as a downstairs enclosure, that the
inspection of that downstairs enclosure be inspected by the county prior to transfer of
ownership; and
Whereas, Section 122-15 of the Code creates a private right of action for buyers
to seek damages and injunctive relief against sellers who fail to obtain such an inspection;
and
Whereas, Ordinance 026-2022 was passed by the Board on November 15, 2022
and became effective on or about March 7, 2023, when the statutory challenge period
required for land development regulations in the Florida Keys Area of Critical State
Concern expired without a challenge; and
Whereas, the Building Department currently lacks the capacity to conduct such
inspections and has not had that capacity for some period of time; and
Whereas, the Board is considering amending Section 122-15 of the Code and will
submit proposals to the relevant federal and state agencies; and
Whereas, the Board previously found that a seller who sold a property which
closed before January 31 , 2024 would have a defense of the non-availability of a condition
precedent to establish the cause of action for claims brought by a buyer against a seller
pursuant to Ordinance 026-2022 and/or 010-2012.
Whereas, the Board finds that a seller who sold a property which closed before
July 31, 2024 would still have a defense of non-availability of a condition precedent (i.e.,
county transfer of ownership inspection) to establish the cause of action for claims
brought by a buyer against a seller pursuant to Ordinance 026-2022 and/or 010-2012.
Now therefore, be it resolved by the Board of County Commissioners of
Monroe County, Florida that:
1. The above-stated recitals are incorporated herein as findings of fact.
2. A seller who sold a property which closed before July 31, 2024 would have a
defense of the non-availability of a condition precedent (county flood
compliance inspection)to establish the cause of action for claims brought by a
buyer against a seller pursuant to Ordinance 026-2022 and/or 010-2012.
3. This resolution should be construed liberally in favor of the seller asserting this
defense as a complete defense to claims brought pursuant to Ordinance 026-
2022 and/or 010-2012.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Flk%da, at x-regular meeting held on the 31st day of January, 2024 held in Marathon,
o FlOda.
Uj
Mayor Holly Merrill Raschein Yes
o M Mayor Pro Tem James K. Scholl Yes
U_ co �: Commissioner Craig Cates Yes
U "M Commissioner Michelle Lincoln Yes
Commissioner David Rice Yes
BOARD OF COUNTY COMMISSIONERS
MADOK, Clerk OF MONROE COUNTY, FLORIDA
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y. dy:
As Deputy Clerk Mayor
Approved for form and legal sufficiency
Kelly Dugan
Kelly Dugan
Assistant County Attorney