HomeMy WebLinkAboutItem Q02 Q2
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE Mayor James K.Scholl,District 3
The Florida Keys Mayor Pro Tern Michelle Lincoln,District 2
Craig Cates,District 1
David Rice,District 4
Holly Merrill Raschein,District 5
Board of County Commissioners Meeting
January 15, 2025
Agenda Item Number: Q2
2023-3432
BULK ITEM: No DEPARTMENT: County Attorney
TIME APPROXIMATE: STAFF CONTACT: Kelly Dugan
N/A
AGENDA ITEM WORDING:
Approval of a resolution extending the date from January 31, 2025, to July 31, 2025, that the seller of a
property 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.
ITEM BACKGROUND:
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. 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.
The Building Department currently lacks the will and the capacity to conduct such inspections and has
not had that capacity for some period of time. The Board of County Commissioners is considering
amending Section 122-15 of the Code and will submit proposals to the relevant federal and state
agencies. The BOCC previously found that a seller who sold a property which closed before January
31, 2025, 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.
Further extension of the time period applicable to the defense of the non-availability of a condition
precedent is warranted while an amendment of Section 122-15 is pursued.
PREVIOUS RELEVANT BOCC ACTION:
11/15/2022 -Approval of Ordinance No. 026-2022.
03/22/2023 - Resolution 093-2023, setting time frame of defense to 09/01/2023.
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07/19/2023 - Resolution 257-2023, extending time frame of defense to 01/31/2024.
01/31/2024 - Resolution 045-2024, extending time frame of defense to 07/31/2024.
07/17/2024 - Resolution 232-2024, extending time frame of defense to 01/31/2025.
INSURANCE REQUIRED:
No
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Resolution inspection program extension 5.pdf
FINANCIAL IMPACT:
N/A
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Resolution No. - 2025
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, 2025
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 Board is considering amending Section 122-15 of the Code and will
submit proposals to the relevant federal and state agencies; 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 needs additional
time to assist in the pursuit of a possible amendment to Section 122-15; and
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Whereas, the Board previously found that a seller who sold a property which
closed before January 31, 2025, 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, 2025, 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, 2025, 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,
Florida, at a regular meeting held on the 15th day of January, 2025, held in Marathon,
Florida.
Mayor James K. Scholl
Mayor Pro Tem Michelle Lincoln
Commissioner Craig Cates
Commissioner David Rice
Commissioner Holly Merrill Raschein
(SEAL) BOARD OF COUNTY COMMISSIONERS
Attest: KEVIN MADOK, Clerk OF MONROE COUNTY, FLORIDA
By: By:
As Deputy Clerk Mayor
Approved for form and legal sufficiency
Kelly Dugan
Assistant Monroe County Attorney
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