Legislative Matter

Miami-Dade Legislative Item
File Number: 212044

Clerk's Official Copy

File Number: 212044

File Type: Ordinance

Status: Adopted as amended

Version: 0

Reference: 21-71

Control: Board of County Commissioners

File Name: RELATED TO REAL ESTATE TRANSACTIONS IN INCORP. AREAS & UMSA

Introduced: 8/23/2021

Requester: NONE

Cost:

Final Action: 7/20/2021

Agenda Date: 7/20/2021

Agenda Item Number: 5G

Notes:

THIS FINAL VERSION AS ADOPTED; ALSO SEE 210923

Title:

ORDINANCE RELATING TO REAL ESTATE TRANSACTIONS IN THE INCORPORATED AND UNINCORPORATED AREAS; CREATING SECTION 21-49.1 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; REQUIRING THAT DISCLOSURE RELATING TO SEPTIC TANK SYSTEMS BE PROVIDED IN CERTAIN REAL ESTATE TRANSACTIONS; PROVIDING FOR ENFORCEMENT THROUGH A CAUSE OF ACTION EXISTING UNDER FLORIDA LAW; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE [SEE ORIGINAL ITEM UNDER FILE NO. 210923]

Indexes:	UMSA
	REAL ESTATE

Sponsors:	Eileen Higgins, Prime Sponsor
	Raquel A. Regalado, Co-Sponsor

Sunset Provision: No

Effective Date:

Expiration Date:

Registered Lobbyist:

None Listed

Legislative History
Acting Body	Date	Agenda Item	Action	Sent To	Due Date	Returned	Pass/Fail

County Attorney	8/23/2021		Assigned	Christopher J. Wahl		8/23/2021

Board of County Commissioners	7/20/2021	5G AMENDED	Adopted as amended				P
REPORT:	Mr. Gregory Baker, Regulatory and Economic Resource, Office of Consumer Protection, Division Chief addressed Commissioner Sosa’s concerns to explained his division was responsible for enforcement of this proposed ordinance which generally requires the disclosure of the sewer and septic type with a real estate transaction. Commissioner Garcia noted on the Florida Relator’s website exhibits a disclosure contract and indicate the septic disclosure was already included in the contract by the seller. Commissioner Monestime indicated he supported this item in part noting, he would support this item to be implemented within the Miami-Dade County Code but imposed the penalty. Commissioner Regalado suggested to waive the requirement if the price was below a certain price point, to make an exception for Affordable Housing, or infill to address buyers that are not aware of the contract ryder. She inquired to Commissioner Higgins where would the fees be applied. In response to Commissioner Cohen Higgins Concerns, Assistant County Attorney Terrance Smith advised the Miami-Dade County Code imposed civil penalties upon the seller and for the seller to make full disclosure of the sewer and septic type to buyers in real estate transactions. Commissioner Higgins indicated to Commissioner Cohen Higgins that Real Estate Brokers for most part did not favor this proposed ordinance. In addition, Commissioner Cohen Higgins opined this proposed item would impose civil penalty upon the seller Chairman Diaz asked Miami-Dade County Administration to distinguish the difference between the Buyer Beware Clause he reissued in a prior legislation he proposed and this item being considered today. In addition, he requested a list of properties Miami-Dade imposed penalty for certain real estate transactions. Assistant County Attorney Christopher Wahl indicated in accordance to the Zoning Code, Chapter 33 imposed civil penalty for violation of certain real estate disclosure and read the following into the record: • Agricultural and GU Districts outside of the UDB, civil penalty $500, • specific airport zoning districts, civil penalty $500, • Homestead Air Reserve Base Zoning District, • Palmer Lake Metropolitan Urban Center District, • Employment Center Planned Area Development District, and • East Everglades Area of Critical Environmental Concern Later in the meeting, Attorney Wahl advised Chairman Diaz his item was located but needed further review of what occurred at the Committee meeting level to determine why the change was requested to his related legislation that had to be reissued. Chairman Diaz did not support this item because he disagreed with the penalty imposed on sellers for not being aware of the cause of action language imposed, and raised concerns about making the buyer aware of such law. In addition, he opined that more information was needed to this proposed item more comprehensive to make buyers aware their purchasing property with a septic tank and the violation notice related to. Commissioner Martinez suggested to add a buyer beware clause captioned in bold to bring awareness to parties involved in the transaction and recommended to remove the civil penalty then he would support this item; Commissioner Heyman concurred but added to launch an education campaign involving relators. Chairman Diaz, Commissioner Martinez, and Commissioner Heyman disagreed with the civil penalty that would be imposed on the buyers and suggested to make the buyer beware clause noticeable by making the clause captioned in bolded print and Commissioner Heyman recommended to launch an education campaign involving relators. Commissioner Regalado indicated the aforementioned suggestions to inform people could be added to her legislation currently being drafted which is related to septic tanks and wells; and she suggested to place a cap amount at over half a million as it relates to low income housing, and to have the fines began year 2023. Commissioner Higgins agreed with her colleagues to remove all references to civil penalties and to move the item with simple disclosure. After extensive discussions amongst Board members, Commissioner Higgins accepted the amendment to remove all references to the civil penalties and to move the foregoing proposed ordinance forward with simple disclosure. In addition, Commissioner Heyman suggested to place emphasis (larger font/bold) on the acknowledgement of the disclosure on the instrument of conveyance for owners to take proper notice. Commissioner Monestime opined this proposed ordinance would punish homeowners already on septic tanks. He urged the Board to involve parties actively involved in this industry. Commissioner Higgins indicated the civil penalty was removed by the cause of action remained due to the requirements of Florida Law for sellers to disclose “all” material facts to buyers relating to the real estate and pointed out this law was separate from Miami-Dade County Code. A discussion ensued between Chairman Diaz and Attorney Wahl regarding potential law suits that could arise from a sellers’ failure to disclose septic tank information to buyers to which Attorney Wahl advised the buyer would have to persuade the courts if the subject septic tank was a material fact. Commissioner Souto announced he left the meeting at 4:29 p.m. A discussion ensued between Commissioner Regalado and Assistant County Attorney Christopher Wahl as to which party has the legal duty to sign the real estate acknowledgement as it relates to the disclosure of septic tank systems if the purchaser designated an agent such as, Power of Attorney. A discussion ensued between Commissioner Regalado and Assistant County Attorney Christopher Wahl as to which party has the legal duty to sign the real estate acknowledgement as it relates to the disclosure of septic tank systems if the purchaser designated an agent such as, Power of Attorney. Assistant County Attorney Wahl advised the agent could sign on behalf of the purchaser and still comply with the ordinance, and indicated the wording “I hereby certify” language could be also be changed. In addition, he clarified as it relates to the acknowledgement only the purchaser could sign and not the agent. Chairman Diaz requested for the Assistant County Attorney/Miami-Dade Administration to explain the difference between the disclosure clause legislation he previously led and the proposed ordinance disclosure at today’s meeting. In specific, he requested to know what changes were previously made at the committee level and why those changes were requested.

Legislative Text

TITLE
ORDINANCE RELATING TO REAL ESTATE TRANSACTIONS IN THE INCORPORATED AND UNINCORPORATED AREAS; CREATING SECTION 21-49.1 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA; REQUIRING THAT DISCLOSURE RELATING TO SEPTIC TANK SYSTEMS BE PROVIDED IN CERTAIN REAL ESTATE TRANSACTIONS; PROVIDING FOR ENFORCEMENT THROUGH A CAUSE OF ACTION EXISTING UNDER FLORIDA LAW; PROVIDING SEVERABILITY, INCLUSION IN THE CODE, AND AN EFFECTIVE DATE

BODY
WHEREAS, septic tank systems are located onsite at individual properties and treat wastewater from toilets, showers, sinks, dishwashers, and other onsite sources; and
WHEREAS, persons and entities that are in the process of purchasing real property may wish to know whether the property has a septic tank system; and
WHEREAS, knowledge about septic tank systems may be relevant to the purchase of real property because maintaining a properly functioning septic tank system and complying with applicable regulations, which may include federal, state, and local regulations, could be costly for property owners; and
WHEREAS, requiring that a seller of real property that contains a septic tank system provide, before the completion of the transaction, a mandatory disclosure statement could help ensure that purchasers are aware of the septic tank system, the potential risks that septic tank systems pose, and the governmental regulations that could apply to septic tank systems; and
WHEREAS, such a disclosure could also prompt a purchaser to conduct a pre-purchase inspection of the septic tank system, the results of which could help the purchaser negotiate repairs to the septic tank system prior to closing or otherwise obtain a fairer purchase price; and
WHEREAS, this Board wishes to require: (1) a disclosure statement relating to septic tank systems before the conveyance of the real property; and (2) acknowledgement of the disclosure by the purchaser; and
WHEREAS, because septic tank systems are present in both the incorporated and unincorporated areas of the County, this requirement should apply in both the incorporated and unincorporated areas; and
WHEREAS, Florida law imposes duties on sellers in real estate transactions, including but not limited to the duty of a seller of residential property to disclose to the purchaser all known facts materially affecting the value of the property which are not readily observable and are not known to the purchaser; and
WHEREAS, Florida law further provides more generally that a person�s violation of a duty imposed by ordinance may form the basis of a cause of action by another person injured by the violation; and
WHEREAS, to help ensure compliance with the septic tank system disclosure requirement, this Board intends for this requirement to impose on sellers a legal duty of disclosure enforceable by purchasers, or other parties with standing, through a cause of action existing under Florida law when the purchaser or other party with standing has sustained financial injury caused by the seller�s failure to comply with the disclosure requirement,
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA:
Section 1. The foregoing recitals are incorporated as if set forth herein and are approved.
Section 2. Section 21-49.1 of the Code of Miami-Dade County, Florida, is hereby created to read as follows:1
>>Sec. 21-49.1 - Required disclosures regarding septic tank systems for real estate transactions.

(a) Applicability.

(1) This section shall be a minimum standard and shall apply to both the incorporated and unincorporated areas.
(2) The County may enforce the provisions of this section in the incorporated and unincorporated areas of Miami-Dade County, and each municipality may enforce the provisions of this section within such municipality.
(3) Any municipality may establish and enforce more stringent regulations and set forth such further penalties as such municipality may deem necessary.

(b) Definitions. As used in this section, the term:

(1) Affected real property means any parcel of land on which a septic tank system is installed or that is serviced by a septic tank system.
(2) Septic tank system means a septic tank or an onsite sewage treatment and disposal system, as defined in section 24-5.

(c) Disclosure statement requirement. Prior to the execution of any instrument committing an individual or entity to purchase affected real property in Miami-Dade County, the seller shall provide the purchaser with the following statement, which shall be set forth conspicuously on a separate sheet of paper in at least 12 point font, and which shall be signed and dated by the purchaser:

SEPTIC TANK SYSTEM DISCLOSURE

LAND INVOLVED IN THIS TRANSACTION HAS A SEPTIC TANK SYSTEM INSTALLED ON IT OR IS SERVICED BY A SEPTIC TANK SYSTEM. SEPTIC TANK SYSTEMS MAY BE SUBJECT TO LOCAL, STATE, AND FEDERAL REGULATIONS. IMPROPERLY MAINTAINED SEPTIC TANK SYSTEMS MAY POSE SUBSTANTIAL RISKS TO HUMAN HEALTH AND THE ENVIRONMENT. IT IS RECOMMENDED THAT THE PURCHASER OF THIS LAND CONSIDER OBTAINING AN INSPECTION OF THE SEPTIC TANK SYSTEM BY A QUALIFIED PROFESSIONAL.

(d) Acknowledgment of septic tank system disclosure statement on instrument of conveyance. The seller shall ensure that the following statement appears in a prominent location on the face of the instrument conveying the affected real property, which instrument must be signed by the purchaser, notarized, and recorded with the Clerk of the Court:

I HEREBY CERTIFY THAT I HAVE READ, UNDERSTOOD, AND SIGNED THE SEPTIC TANK SYSTEM DISCLOSURE STATEMENT FOR THE CONVEYANCE OF THIS REAL PROPERTY, AS REQUIRED BY SECTION 21-49.1 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA.

(e) Enforcement.

(1) Miami-Dade County shall not be held liable for any damages or claims resulting from the seller�s failure to comply with provisions of this section.
(2) It is the intent of this section to impose on sellers a legal duty of disclosure enforceable by purchasers, or other parties with standing, through a cause of action existing under Florida law when the purchaser or other party with standing has sustained financial injury caused by the seller�s failure to comply with the disclosure requirement. Notwithstanding the foregoing, this section shall not be construed as creating an express or implied private cause of action.<<
Section 3. If any section, subsection, sentence, clause or provision of this ordinance is held invalid, the remainder of this ordinance shall not be affected by such invalidity.
Section 4. It is the intention of the Board of County Commissioners, and it is hereby ordained that the provisions of this ordinance, including any sunset provision, shall become and be made a part of the Code of Miami-Dade County, Florida. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word.
Section 5. This ordinance shall become effective ten (10) days after the date of enactment unless vetoed by the Mayor, and if vetoed, shall become effective only upon an override by this Board.
1 Words stricken through and/or [[double bracketed]] shall be deleted. Words underscored and/or >>double arrowed<< constitute the amendment proposed. Remaining provisions are now in effect and remain unchanged.