Buyers’ Rights During the Inspection Period When Purchasing a Condominium

In the wake of the collapse of the Champlain Towers South in Surfside, Florida, many buyers looking to purchase condos for either their primary residence, a second home, or as an investment property have paused to consider whether the unit being purchased is structurally sound.  Such a pause will likely cause a corresponding temporary dip in condo sales throughout the state of Florida in what has otherwise been an historically hot real estate market.

While buyer hesitation after such a tragedy is to be expected, buyers should take this time to make sure they are aware of their legal and contractual rights as it relates to due diligence as well as seller disclosure requirements during a transaction.  Real estate contracts in Florida are purposely written to favor buyers during the inspection period of the contract.  As such, buyers should use this time to take advantage of the time afforded to them in order to conduct a thorough investigation of the condo being considered for purchase.

Seller Disclosure Requirements and Buyer Due Diligence

It may come as a shock to many that Florida law only requires sellers and their listing agents to disclose information on the individual unit being conveyed.  The law does not require disclosure of any information regarding the common areas of a building or property unless the common elements are damaged by any casualty during the contract period prior to closing.  With regard to the condo association, sellers are required to disclose the following items:

• monthly association dues and assessments owed for the unit;
• copies of the association’s Declaration of Condominium, Articles of Incorporation, Bylaws, Rules of the Association; and
• the most recent year-end Financial Information as required by Fla. Stat. §718.503

These items can be very helpful when investigating the property.  The Financial Information should show a good history of monthly maintenance, borrowing, arrearages, the current reserve fund (which is hopefully strong) and the mortgage structure (if any) and whether the mortgage is coming due.  Buyers should also request copies of the monthly association meeting minutes.  The minutes can be requested directly from the association, and they will provide insight into any owner complaints about the physical condition of the common elements and how those complaints were addressed by the board.

Due to the limitations on the information sellers are required to disclose, buyers should use the inspection period provided in the contract to their advantage to uncover as much information about the condo property as possible.  Standard Florida residential contracts typically provide a ten to fifteen-day inspection period (also known as the due diligence period), for buyers to conduct investigations of the property to determine whether the condition of the property warrants moving forward with the purchase.  The inspection period provides a “free look” for buyers to conduct investigations of the property to determine whether the property is sufficient without their escrow deposit being at risk.  If it is determined during this period that the property is not worthy of purchasing, buyers may withdraw from the contract without losing their deposit.  It is incumbent on buyers to conduct their own research into the building’s inspection history with the local county building department during the inspection period to make sure the building is up to date on its inspections and repairs.  Buyers should also review the year-end Financial Information from the association to see whether there are any pending assessments for the unit owners for major repairs.  This may also shed additional light on the physical condition of the building.

Many counties in Florida require condominiums to undergo a 40-year certification process whereby an engineer must certify the that the building is structurally and electrically safe.  Buyers should know to ask for this report when purchasing a unit in an older building, especially in south Florida, where the environmental conditions are changing more rapidly due to sea level rise and exposure to more severe weather.

Anticipated Changes in the Law

Initial changes in seller disclosure requirements are not anticipated until early next year when the Florida legislature reconvenes.  However, the Florida Bar Association, the Florida Association of Realtors, and the Northeast Florida Association of Realtors are already drafting proposals to address these issues.  Associations will also likely be required to have more information readily available about the condo property’s history, since more information is likely to be requested by buyers than in years past.  Lastly, it would seem prudent for the legislature to adopt stricter laws on when and for how long an association is able to defer building maintenance.

Counties may also adopt more stringent building code and inspection standards.  As noted above, the counties that undergo a 40-year certification process may reduce to this requirement to a 30-year process or even less.  Insurance companies may also place more stringent requirements on condominiums before insuring a unit in a specific building.

Conclusion

Purchasing a condominium can be confusing and intimidating for many buyers given the lack of information surrounding the physical integrity of the condominium building or property.  Buyers should enter into any contract for the purchase of a condo knowing that more due diligence will be required in order to feel comfortable when it comes time to close.  A real estate agent might not be the best resource to handle tasks.  As such, hiring an experienced real estate attorney to review and explain association documents is one way to help navigate this process.