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Was there proper disclosure of restrictions?

April 11, 2019
By ERIC FEICHTHALER - Real Estate Law , Cape Coral Daily Breeze

Dear Mr. Feichthaler:

I recently signed an offer to purchase a house that is in a gated community in Lee County, and the offer was accepted. I believed that I would be able to park my 40-foot RV next to the house, based on seeing other RVs in the development, and statements by my Realtor. A few weeks later, I was provided the rules of the development, and it said that only RVs under 30 feet are allowed. I told the seller I want out of the contract, and she said that since the contract says it is a cash deal, and the time to inspect is over, I have to buy it. Otherwise, I will lose my $20,000 deposit. What can I do?

-Allie D.

Dear Allie:

When buying a property, it is key to know what restrictions may exist on the property. Cities like Cape Coral have restrictions, particularly the parking of boats and other vehicles. If someone moves here with the intent of having a boat on a trailer in their front yard, they will be unpleasantly surprised when they move in.

Homeowners associations and condominiums have additional restrictions. Generally, these restrictions are for the health, safety or aesthetics of the development. In your case, it sounds like the rules allow only for certain sized RVs. The first thing you should do is contact the association or its management company, and confirm that your RV would not be permitted.

If it is not allowed, we then take a look at the contract to see if you are able to cancel. You have explained that the time for inspection has already passed, and it is a cash deal. In most contracts, that would usually mean that your deposit would be forfeited if you do proceed.

However, the Florida Legislature may come to the rescue for you. Florida Statutes Section 720.041 provides for required notice to buyers of property governed by a Homeowners Association. The statue requires a "disclosure summary" be provided to the buyer before executing the contract. Many sellers, and even some realtors, do not realize this disclosure is required. The statute goes on to say that, if the disclosure is not provided at signing, then the purchaser may void the contract within three days if it is later provided to the buyer. Or, if the disclosure summary is never provided, the buyer can cancel anytime up until the closing date. Simply providing you with the documents governing the association is insufficient -- the disclosure must be provided and include the specific language in the statute.

Once it is determined whether you received this disclosure, you will know whether you have the unilateral ability to void the contract. Given the amount of money involved, and the likelihood that the seller may not even be aware of the rule, I recommend you seek professional representation to protect your interests.

Eric P. Feichthaler has lived in Cape Coral for over 30 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 continues his service to the community through the Cape Coral Caring Center, Cape Coral Historical Museum, and Cape Coral Kiwanis. He has been married to his wife, Mary, for over 18 years, and they have four children together. He earned his board certification in Real Estate Law from the Florida Bar. He is AV Preeminent rated by Martindale-Hubbell for professional ethics and legal ability, and is a Supreme Court Certified Circuit Civil Mediator.

Mr. Feichthaler can be reached at eric@capecoralattorney.com, or (239) 542-4733.

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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