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No disclosure needed for algae presence

August 3, 2018
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler,

I live at the end of a canal in the Yacht Club area, and I am in the process of listing my house. Currently, there is a thick layer of blue-green algae present, along with dead fish and a strong odor. This has made it difficult to show our house. What I am wondering, do we need to disclose, in writing, the algae matter on our listing? Could we be held responsible for future algae blooms?

- Kathryn M.

Dear Kathryn,

The recent developments in our environment have, unquestionably, had a negative impact on our wildlife. Consequently, there has been an economic impact for people who make their living on the water, tourism and real estate. Although most people in the real estate market accept this issue is temporary and continue to purchase real estate, a few transactions have been impacted.

Generally, any type of material defect to a property that is not easily seen from visual inspection or public records should be disclosed. Failure to do so can lead to future liability for a seller. The question is two-fold: Does this algal bloom qualify as a material defect to real property, and is it something that is not obvious to a buyer using basic due diligence.

Our canals do not constitute a part of the home or the property on which the home sits. The canal is a right of way, much like a road in front of your house. So the canal itself is not part of the real estate. As for the algal bloom itself, even though it may have man-made causes, it is still an unpredictable, uncertain, natural event. Like the potential for hurricanes, sinkholes and invasions by exotic iguanas, I believe that the presence of algae does not require written disclosure. However, as you have duly noted, the presence of the algae is open and obvious, so any buyer will know, or should know, the issue exists.

Unless you materially hide or mislead your buyers, you should not have future liability for future algal bloom events. We all put our hopes on our state and federal legislators to take swift action to reduce nutrient input to Lake Okeechobee, and nutrient latent output into our local waters.

Eric P. Feichthaler has lived in Cape Coral for 28 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continued his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest from 2011-2015, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 14 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.

This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.



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