Each year, the months of June to November keep property owners across the State of Florida a bit on edge when storms begin brewing out in the Gulf and the Atlantic. This past weekend tropical depression Claudette kicked off the 2021 hurricane season, signaling to property owners across the state that it is time to begin making the necessary preparations in advance of potential storms. In addition to stocking up on batteries, plywood, and water, property owners should be aware of potential legal consequences resulting from a hurricane or tropical storm.
Damage to land
The first and perhaps most readily apparent of these consequences is when a hurricane causes a sudden change to the shoreline otherwise known as avulsion. The United States Supreme Court defined avulsion as:
the sudden or perceptible loss of or addition to the land by the action of the water or a sudden change in the bed of a lake or the course of a stream.”
Hurricanes are considered avulsive events under Florida law, which – unlike other erosion events (such as accretion or reliction which are more gradual) – preserves the property boundary at the mean high water mark existing prior to the storm. In the aftermath of a hurricane which causes a sudden loss of the shoreline, that boundary remains the same, entitling the State to reclaim or back fill that portion of the beach to ensure that the public right of access is not cut off.
Beachfront owners should be cognizant of the location of the mean high water mark or any coastal construction control line. After a storm passes, this will allow beachfront owners to better understand how the storm impacted their property boundary, and whether the State has any rights to backfill a portion of the beach that was lost.
Purchasing property in hurricane season
Even prospective property owners should be mindful of how contracts address casualty events and acts of God such as hurricanes. The FARBAR “As Is” Residential Contract for Sale and Purchase (the “FARBAR Contract”) provides for a seven day extension of the closing date after the occurrence of a hurricane or natural disaster. In the event that the hurricane prevents the closing for more than 30 days, then either party may provide written notice of their intention to cancel the contract.
The FARBAR Contract further provides that if the property is damaged by a storm or other casualty event, and the damage does not exceed 1.5% of the purchase price, then the seller will be responsible for the cost of restoration, either prior to closing, or after closing by holding back a portion of the sale proceeds until repairs are complete. If the repairs exceed 1.5% of the purchase price then the buyer can either elect to take the property in “as is” condition with an allowance of 1.5%, or cancel the contract and receive a refund of the deposit. Parties looking to purchase property during hurricane season should be familiar with these provisions to understand their rights under the contract.
Landlords and tenants
Similarly, landlords and tenants under both residential and commercial leases should review provisions of their lease agreements governing casualty, force majeure, and hurricane clauses to determine the obligations of each party prior to the storm making landfall. In certain instances a lease may require either the landlord or tenant to install storm shutters, sandbags, or take other necessary precautions.
For commercial leases these hurricane clauses are especially important, as preparing the property for a storm may take up valuable time needed to secure business operations or even a party’s own home and family. Further, these clauses can also require one of the parties to assume the cost of procuring these hurricane protection measures, which may be burdensome especially considering that business may be interrupted for days, and even weeks, after a storm. The parties to the lease should be mindful of these hurricane clauses prior to executing the lease and negotiate an arrangement that adequately addresses the rights and responsibilities of each of the parties.
In addition, if certain hurricane protection measures are required by the lease, the necessary materials should be acquired by the responsible party at the commencement of the lease term to ensure that a shortage in supplies does not result in a violation of the lease and damage to the property, thereby avoiding potential liability for damages under the lease.
In addition to property damage, waterfront owners also could potentially lose boats and other vessels during a hurricane. Admiralty law imposes a presumption of liability against a vessel that breaks free from its dock or mooring and damages the property of another. This presumption is a long-standing admiralty law principle, which places the burden on the vessel’s owner to prove that they were not at fault for the boat breaking free.
In the case of a hurricane or other act of God, the vessel owner can rebut this presumption if the owner can show that proper nautical skill could not have prevented the vessel from breaking free. For boat owners who are unable to safely secure vessels on land, they must ensure that their boats and other watercraft are properly secured prior to the storm making landfall, or could face potential liability if the boat were to break free and cause damage.
Finally, Florida Statues Section § 718.113 provides for certain rights of condominium owners and associations with respect to the maintenance and installation of hurricane shutters. The association is entitled to operate shutters, impact glass, and code compliant windows without unit owner permission to protect and preserve the condominium and association property. Association boards must adopt hurricane shutter specifications. If unit owners are responsible for installing hurricane shutters, a board may not deny such installation if the proposed shutters comply with the association’s adopted specifications.
Unit owners and board members should look to the governing documents of the association to determine whether maintenance, repair and installation of these hurricane protection measures is the obligation of the association or unit owner.
If you have questions about your legal obligations in advance of a hurricane, I may be reached at firstname.lastname@example.org or by phone at 239.344.1268.