MIAAOR NEWS “MIAAOR...HELPING YOU SELL MORE”

In This Issue

President’s Message 1

Florida Realtor Stats 3

Ask the Attorney 4

FR—Talk to an Attorney 7

Law & Ethics 9

October 2017 Events 11

September President’s Message Michael J. O’Rourke, III

2017 MIAAOR President

Mission Statement:

The Marco Island Area Association of Realtors® proactively provides services and programs for our members’ benefit.

No doubt Hurricane Irma has impacted every member and affiliates life. We have

experienced the damage and stress this storm has caused to our community and

surrounding communities in a very personal manner. Likewise, we are realizing the

incredible resilience and spirit our friends and neighbors have displayed. The very

best of mankind is front and center as people are traveling from all over the country

to help. I heard that a lineman from a Montreal Power Company traveled all the

way to Florida to help get power restored. So many fantastic examples of amazing

people helping others in their time of need!

MIAAOR has taken an active role in helping with the recovery process for our

communities. The items that members had donated for Hurricane Harvey were

redirected to local communities via the efforts of the Marco Patriots. Your Board of

Directors voted to not reschedule the September 14th General Membership

Luncheon and contribute the $3,500 in association event funds to local Irma

recovery efforts.

The MIAAOR office is open and available if you need internet access or some space

in the conference room. Pattie has been terrific helping anyone with listing changes

or MLS-related issues. Please note that Pitch Plus has been cancelled for September

22nd and 29th as recovery efforts continue.

I would be remiss of I didn’t mention that the Association was very fortunate to

have completed major repairs to the building roof prior to the storm arriving. Past

President Bill Filbin was instrumental in encouraging this critical work.

Additionally, our Pitch Plus Chairman Jack Winnik graciously installed the storm

shutters prior to Irma. Both of these gentlemen served our association well, and we

are very grateful.

Our Bylaws allow the Board of Directors to serve as the electorate, and thus, the

current Board elected the 2018 Officers and Board members this week. This action

was taken because we didn’t have a General Membership Luncheon and election in

September due to the storm.

Thursday, September 28th is AE Appreciation Day as designated by NAR. We are

extremely fortunate to have Shirley English serve as our association’s CEO. Thank

you Shirley for all you do!

Continued on Page 2

Volume 9 - September 2017

2017 AFFILIATE SPONSORS:

PLATINUM LEVEL:

Law Offices of William G. Morris

GOLD LEVEL:

Finance of America

SILVER LEVEL:

Florida Community Bank

Hilton Moving & Storage

Nations Reliable Lending

BRONZE LEVEL:

Wells Fargo

Island Title 5 Star Agency

First Title & Abstract

Law Office of Sam Saad, III

Centennial Bank

Island Country Club

Hideaway Beach Association

Join us on Facebook

2

President’s Message

Continued from page 1

Many members, affiliates, friends and family members have been impacted by Irma and need help. Below

please find resources to get help and to provide assistance to others:

Florida Realtors Disaster Relief Fund - This is Realtors helping Realtors and others in the Realtor

family - including real estate brokerage employees, associations and staff - who need assistance. The

Fund accepts donations from anyone who wants to help.

Florida Realtors Disaster Relief Fund - to donate

Florida Realtors Disaster Relief Fund - to apply for help

Florida Disaster Relief Fund supports local service organizations that help individuals in their

communities with disaster response and recovery efforts - Click to donate or text DISASTER to 20222 to

make a one-time donation of $10. NOTE: Individuals seeking financial assistance should register with

FEMA at 1-800-621-FEMA (3362)

National Association of Realtors® (NAR) Realtors® Relief Foundation - to donate

Federal Emergency Management Agency (FEMA) offers federal disaster assistance:

To call, (800) 621-FEMA (3362); TTY (800) 462-7585; more info, www.fema.gov

Federal Disaster Recovery Center (DRC): To find a center near you to go to for guidance, use the DRC

Locator or text DRC and your zip code to 4FEMA (43362).

Small Business Administration (SB) offers low-interest disaster assistance loans and business help

American Red Cross: (800) HELP-NOW

Salvation Army: (800) SAL-ARMY

Florida’s free Insurance Consumer Helpline for insurance questions about policies: (877) 693-5236

Florida Chief Financial Officer’s webpage to assist consumers with filing claims

Florida Department of Economic Opportunity’s Disaster Unemployment Assistance (DUA) Program

offers assistance to businesses and residents whose employment or self-employment was lost or

interrupted due to Irma. More info or to file for DUA or call 1-800-385-3920

Florida Small Business Emergency Bridge Loan Program provides support to businesses that suffered

economic or physical damage from Hurricane Irma. The application period expires October 31, 2017.

Continued on Page 3

3

Please click the links below to view the most current statistics from

Florida Realtors®:

http://marcorealtor.com/pdf/MIAAORSingleFamilyHomes082017.pdf http://marcorealtor.com/pdf/MIAAORTownhousesCondos082017.pdf

President’s Message

Continued from page 2

Florida Virtual Business Emergency Operations Center offers a business damage assessment

surveying tool for businesses to report damages from Hurricane Irma.

National Flood Insurance Program (NFIP) Call Center: (800) 621-3362 (option 2): email, complete a

“Request for Support” form and send to FEMA-NFIP-Support@Fema.dhs.gov

A legal aid hotline is now available for Hurricane Irma survivors in Florida who cannot pay for an

attorney: 1 (866) 550-2929

Thank you to all those wonderful people who are contributing to the recovery efforts.

MIAAOR is resilient, and we will move forward!

Mike

4

ASK THE ATTORNEY

By: Bill Morris, Association Attorney

QUESTION AND ANSWER

Question: We are getting calls from buyers who want to cancel contracts due to Irma. What

provisions in the NABOR contract might be pertinent to Irma storm damage?

Answer: First and most important, the facts of every situation affect the outcome. Buyers and Sellers

with questions about contract or storm damage from Irma should consult with their attorney and rely on

the advice of their attorney. Information in this answer is not legal advice and is a general response

referencing certain provisions in the NABOR Residential Improved sales contract that might be pertinent

to Irma.

No “form” contract can address all possible scenarios, and the NABOR contract is no exception.

First thing to note is the NABOR contract does not have a “force majeure” clause. Force majeure is

generally an act of God which substantially interferes with or prevents performance. Even though the

NABOR contract does not have a force majeure clause, the legal doctrine of force majeure may still apply.

That is an example of how facts of each case must be reviewed with an attorney to determine applicability

of contract and law to the facts. Other non-contract legal concepts may also be applicable, making good

legal advice essential under the circumstances.

The NABOR contract contains a number of provisions which may be relevant to transactions impacted

by Irma. The following is not intended to be an exhaustive review of all provisions which might apply, but

major provisions that may be “Irma related.”

Time is of the essence for closing, per line 47. But, when were local banks open during Irma? What

offices were open during mandatory evacuation and who had power after Irma passed through? Those

facts may all affect rights and obligations of the parties and are not directly addressed by the contract.

Effective Date of the contract is last dated signatures or initials under lines 43-45. Irma does not

change that. Many contract deadlines (i.e. financing contingency waivier deadline at line 43 and

inspection deadline at line 214) are calculated from the Effective Date. Irma does not change arithmetic,

but may impact deadlines.

Financing contingency at Section 4 of the contract may be important. If the contingency is not waived,

closing remains contingent on buyer obtaining a loan. Irma may impact financing availability. If the buyer

has waived the financing contingency, ability to extend closing date for up to 10 days at lines 70 through

73 may be pertinent.

Standard D.2.d. requires the seller maintain the property in condition existing on the Effective Date

until the Closing Date or date of possession, whichever is earlier, except for ordinary wear and tear and

any remedial action agreed to by seller.

5

Ask the Attorney

Continued from Page 4

That section further provides that any loss or damage to the property or furnishings between the

Effective Date and the Closing Date or date of possession shall be at the seller’s sole risk and expense.

The seller is required to maintain all existing casualty insurance until disbursement.

Lines 297 through 303 state what happens if the seller fails to maintain the property, the property

is damaged or the seller fails to complete agreed repairs. Pertinent language is “SELLER shall, at

BUYER’s request, either perform Remedial Action with respect to the Property and/or restore the

Personal Property to the condition required by this Standard prior to the Closing Date, or provide a

credit acceptable to BUYER at closing equivalent to the estimated cost of the Remedial Action and the

repairs and/or replacements required to restore the Personal Property to the condition required by

this Standard, failing which, SELLER shall escrow at closing a sum equivalent to 200% of the

estimated costs for payment to appropriately licensed contractor(s) performing the Remedial Action

and repairs to and/or replacements of the Personal Property.” Application of that section to any

specific transaction should be reviewed with counsel.

Lines 304 through 306 read as follows, “Notwithstanding the foregoing, if any casualty loss or

damage occurring after the Effective Date of this Contract renders the Property at closing either: (a)

uninsurable under the residential underwriting standards of the Citizens Property Insurance

Corporation, or (b) unfit for habitation under state or local building codes, either BUYER or SELLER

may terminate this Contract.”

Standard N, at lines 423 through 426 provides, “If BUYER is unable to obtain hazard, flood, wind

or homeowners insurance at a reasonable rate due to extreme weather conditions, BUYER may delay

the Closing Date up to 5 days after such coverage becomes available. If such coverage does not be-

come available for a period of 30 continuous days, either SELLER or BUYER may terminate this

Contract.”

One or more of these contract provisions may apply, but that should not be the end of review.

Facts for each case and Florida law outside of the contract may affect the outcome. Please recommend

your customers consult with counsel for answers about questions concerning Irma’s impact on a par-

ticular transaction.

Bill Morris, Association Attorney

Law Offices of William G. Morris

239-642-6020

6

7

Florida REALTORS® September 2017

TALK TO AN ATTORNEY

Advice from the Florida Realtors Legal Hotline

DISCLOSURE:

Is a seller obligated to complete a seller’s real property disclosure form under Florida

law?

No. However, although the form itself is not a legal requirement, the seller does have a duty to disclose

to the buyer facts not readily observable that materially affect the value of the property, if any such

facts are known by the seller. Please note that, although the seller may not be obligated to provide a

form disclosure, a real estate company could create its own internal rule requiring associates to secure

a form disclosure from the seller.

ENVIRONMENTAL ISSUES:

I represent a buyer who wants to buy vacant land and develop it. The land my buyer is

interested in has gopher tortoises on it. Are there any special rules regarding gopher

tortoises?

Yes. In Florida, the gopher tortoise is classified as a threatened species, and the tortoise and its burrow

are protected by state law. It’s illegal to harm, capture or transport gopher tortoises or damage their

burrows except as allowed under a specific Florida Fish and Wildlife Conservation Commission (FWC)

permit. Before development-related activities can begin, property owners may need to capture and

relocate all gopher tortoises, which can be costly. Your buyer can find more information about gopher

tortoises and the permit process on the FWC’s website: http://myfwc.com

Thank You to this month’s advertisers:

Island Country Club/Panther Home Inspections/Law Offices of

William Morris/Commission Express/Island Title 5 Star Agency.

Want to advertise - call Kandy @ 394-5616

MIAAOR Membership as of

August 31, 2017:

Designated REALTORS® 48

REALTORS® 516

Appraisers 3

AFFILIATES 50

8

Did you know?

Under the current NABOR Sales Contract (Residential Improved Property) if the property suffers any loss or damage prior to the closing date, the seller, at the buyers request, must either restore or replace the property or provide a credit acceptable to the buyer or equal to estimated cost of repair, failing which the seller shall escrow at closing a sum equivalent to 200% of the estimated cost of repair by a licensed contractor(s). The escrowed sum is not a cap on the sellers liability for completion of the remedial action.

If any casualty loss or damage occurs after the Effective Date making the property uninsurable or unfit for habitation, either the seller or buyer may terminate the contract. The seller shall maintain all existing casualty insurance until disbursement.

Let us protect your clients and your sales.

Law Offices of William G. Morris, P.A. 247 North Collier Boulevard, Suite 202

Marco Island, Florida 34145 Telephone (239) 642-6020 wgm@wgmorrislaw.com

9

Florida Realtor Magazine

September 2017

LAW & ETHICS

Liability Issues

Should Sellers Allow Buyers to Move in Prior to Closing?

Steps you can take to protect all parties

Allowing buyers to take possession of a home prior to closing may seem like a good decision in select

cases, but it can also lead to serious problems. Consider these actual cases:

A listing agent and buyer’s agent were excited that the transaction was going so well. So when the

buyers asked permission to paint the house prior to closing, it was granted. After all, the house was

vacant, and the buyers and the sellers hit it off when they met. The painters covered the hardwood

floors with drop cloths to keep them clean. However, one of the drop cloths was sitting on a floor

furnace. The furnace turned on during the night, ignited the drop cloth and he house burned down.

In another equally messy situation, the sellers agreed to allow the buyers to take possession prior to

closing provided that the buyers released part of their deposit to the sellers. Once the buyers were

in possession of the property, they refused to close the deal. The sellers filed a lawsuit. At the

preliminary hearing, the judge ruled that because the sellers had taken part of the buyer’s deposit,

the buyers now had a financial interest in the property. Because so many lawsuits were on file in

Los Angeles, it would take five years before the case could come to trial. In the meantime, the

sellers were stuck with no recourse.

So what should you do if there is no other option but to let the buyer move into the property prior to

closing? Here are the steps to take to protect all parties:

1. DRAW UP A SEPARATE LEASE AGREEMENT THAT INCLUDES A SECURITY

DEPOSIT.

The most important distinction between a buyer in possession and a tenant in possession is that

evicting a tenant is relatively easy. In contrast, getting rid of a buyer in possession often requires

a lawsuit. To protect the sellers’ rights in a situation like this, it’s imperative that the buyers and

sellers sign a separate lease agreement. Also, until the transaction closes, the buyers are tenants

and should pay a separate security deposit, in addition to whatever amount they put down as an

earnest money deposit.

10

Liability Issues

Continued from Page 9

2. THIS IS NOT A “DO-IT-YOURSELF” PROJECT.

Use a lease agreement that is generated by an attorney. Don’t attempt to write out a lease

agreement that addresses the rules for eviction, how the deposit will be handled or the liabilities for

damage to the property during the rental period. To do so is practicing law without a license.

3. MAKE SURE THAT THE APPROPRIATE INSURANCE IS IN PLACE.

Many sellers mistakenly believe that their homeowners’ insurance provides adequate coverage

for buyers who move into their property. This might be the case if the sellers were still living on the

premises and the buyers were their guests. The sellers should contact their insurance company to find

out what is required regarding handling a short-term rental, and pay the extra insurance fees. It’s more

than worth it if there is a claim as in the case above.

Also, the buyers should be aware that the lessors’ (sellers’) insurance does not cover their

belongings. Furthermore, a sellers policy normally does not provide liability coverage for the buyers or

their guests. The best way for the buyers to protect their interests is to purchase a renters’ insurance

policy; the sellers should include this as a requirement in the lease to protect themselves from claims.

To provide extra protection, the parties should insist that a home warranty policy is in place on

the property. That way, if there is an issue with a major system on the property, there won’t be a

conflict about who is going to pay for the repair.

4. DOCUMENT THE PROPERTY CONDITION.

The condition of the property is often a major source of contention if the buyers fail to close. The

sellers/lessors should take extensive photos and shoot a video prior to the time that the buyers /lessees

take possession. If there is a dispute, the sellers/lessees will have concrete proof of the prior condition

of the property.

The bottom line: Always advise the buyers and/or sellers to seek legal advice regarding a buyer’s

moving into a property prior to closing. Document your advice to do so in writing.

Reprinted with permission of Bernice L. Ross. Copyright 2017

11

October 2017 Calendar of Events

Thursday, October 5 12:00pm Lunch Hour Learning - “Donna Fiala, Collier County Commissioner District 1” - LHL100517 Please register if you are planning on attending. Lunch is being provided by Island Title 5 Star Agency Friday, October 6 8:30am Pitch Plus - Island Tour Sponsored by: Florida Community Bank Saturday, October 7 9:00am Florida Realtors® District 5 Softball Tournament North Collier Regional Park on Livingston, Naples Come out and cheer on the Marco Island Team! Thursday, October 12 12:00pm Lunch Hour Learning - “Abe Skinner, Collier County Property Appraiser” - LHL101217 Friday, October 13 8:30am Pitch Plus - Island Tour Sponsored by: Nations Reliable Lending Tuesday, October 17 8:30am MLS Committee 10:00am Foundations of Form Simplicity - 101717AM - Earn 2 Hours CE Credit - Presented by: Kaz Cisowski, Florida Realtors® - Sponsored by: First Title & Abstract 1:00pm Optimizing Your Overflow in Form Simplicity - 101717PM Earn 2 Hours CE Credit - Presented by: Kaz Cisowski, Florida Realtors® - Sponsored by: Centennial Bank Wednesday, October 18 12:00pm RSN Committee Thursday, October 19 8:00am Board of Directors 11:00am Professional Portraits w/Anthony Either call 1-941-224-1246 or email Anthony to schedule your appointment. Friday, October 20 8:30am Pitch Plus - Island Tour Sponsored by: Regions Mortgage Wednesday, October 25 1:00pm Reverse Mortgages - 102517 Presented by: Sue Haviland, TowneBank Reverse Mortgage Thursday, October 26 2:00pm MLS Prospecting - 102617 Presented by: Pattie Ziesig Sponsored by: Wells Fargo Friday, October 27 8:30am Pitch Plus - Off Island Tour Sponsored by: Island Title 5 Star Agency Tuesday, October 31 8:00am New Member Orientation Sponsored by: Hilton Moving & Storage HAPPY HALLOWEEN!