Time is running out to take lobbying action on an Ordinance entitled "Mandatory Code Inspection of Foreclosed and Abandoned Homes Ordinance." On Tuesday, June 23, 2009, the Collier County Board of County Commissioners will consider adopting this Ordinance. If adopted in its current form, this Ordinance will increase out-of-pocket costs to many mortgagees holding residential mortgages and/or owning residential properties in Collier County, Florida and could impact future Collier County, Florida residential lending and loan closing practices.

In its current form, the Ordinance requires owners, such as mortgagees who acquire title to abandoned residential properties through foreclosure or deed in lieu of foreclosure to obtain an "inspection report" and "certificate of inspection" prior to any subsequent sale of the property. Having a contract option to obtain a pre-closing home inspection at buyer's cost is a substantial deviation from the normal practice of a buyer. In addition, the Ordinance does not currently define "abandoned" residential property. This creates real uncertainty as to when mandatory inspections are required and when they are not required.

The mandated "inspection report" and "certificate of inspection" forms are approved by the County, and can change over time. The "Inspection report" is prepared by a private inspector such as a Certified Home Inspector, a State or County Licensed Contractor, a Licensed Building Inspector, or a Licensed or Registered Design Professional required to comply with the Florida Building Code and Licensed Under Chapter 468 (Part XII and Part XV), Chapter 471, Chapter 481, or Chapter 489, Florida Statutes. In addition, the "inspection report" confirms whether such residential property complies with all applicable County ordinances relating to permitting, zoning, building and any other ordinance, the violation of which presents a threat to public health, welfare or safety. It is unclear at this time whether such private inspectors are willing and/or able to provide the County mandated "inspection report" given its potential scope. Also, given the legal risks associated with providing such a comprehensive report to a mortgagee/owner that must be factored into product pricing, the cost of an "inspection report" is uncertain at this time.

For such abandoned residential property acquired through foreclosure or deed in lieu of foreclosure, this Ordinance will substantially expand the scope of home inspections. Current home inspections do not typically address items such as whether non-permitted structures exist, whether existing uses comply with the zoning ordinance, and whether all existing improvements comply with building code. Further, the Ordinance requires that the entire "inspection report" be filed with the County and that any ordinance violations disclosed in the "inspection report" are forwarded to Collier County Code Enforcement.

Based on the current level of Collier County Board support for this Ordinance, it appears that some form of the Ordinance will be adopted. Roetzel & Andress' land use attorneys routinely lobby County Staff and the Board on behalf of a diverse group of clients, including residential and commercial property owners. Further, there is a possibility that the Ordinance can be legally challenged. We are available to assist you in navigating complex legal issues both before and after some form of this Ordinance is adopted.