Op-Ed by Alber J. Slap, Coastal Risk Consulting, The Invading Sea, July 2, 2019

Under Florida case law, a seller of a home must disclose to the buyer all known facts that materially affect the value of the property and that are not readily observable or known to the buyer.

Typically, a buyer in Florida is provided with a Seller’s Property Disclosure Form. It covers a variety of property conditions and risks, including: structures, appliances, termites, water intrusion, flooding drainage, sinkholes, lead paint, mold, asbestos, roof condition, and zoning issues.

These are important, but, as the form itself states, the seller may declare that he or she does not have any information on some or all of these risks and, the disclosure “is not a guaranty or warranty of any kind.”

According to a recent study by the Natural Resources Defense Council, Florida is one of 21 states where there are “no statutory or regulatory requirements for a seller to disclose a property’s flood risks or past flood damages to a potential buyer. The other 29 states have varying degrees of disclosure requirements. This hodgepodge of state and local policies hinders buyers from making fully informed decisions.”

The Florida seller disclosure form also, and properly, states that: “it is not a substitute for any inspections, warranties or professional advice” that the buyer may wish to obtain.

In Florida, as in most of the world, floods represent the biggest annual risk of damage and loss to property. Homebuyers need to understand their flood risks and determine if they need flood insurance and in what amounts.

However, many property owners believe that banks or insurance brokers will tell them what FEMA flood zone they’re in and whether they should buy insurance. This would be a big mistake.

Of the more than 200,000 Texas homes damaged in Hurricane Harvey, 75 percent were not in the FEMA 100-year flood plain. A great majority of these homeowners did not buy flood insurance because their mortgage company did not require it.

It is very important for homebuyers to understand this fact: FEMA maps don’t tell the whole story about flood risks. They are primarily an underwriting tool for the government-owned National Flood Insurance Program (NFIP).

FEMA maps have failed spectacularly in some cases. This is especially true in Florida, where storm surge and tidal flood risks are prevalent.

First, they do not include the NOAA storm surge heights or the National Hurricane Center storm-return frequencies. Almost always, NOAA and the hurricane center predict higher surge and greater frequencies than FEMA maps. So, shouldn’t homebuyers be made aware of both the FEMA predictions and the NOAA predictions?

Answer: yes.

Before Hurricane Michael struck Mexico Beachin 2018, coastal residents thought that they were safe residing in a FEMA X zone. The storm wiped their homes off the map.

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