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Those of us living in South Florida have all experienced flooded streets and intersections during periods of heavy rainfall. This intermittent flooding generally dissipates quickly, and most of us consider it to be one of the prices we pay to live in paradise. Recently, a different type of flooding, termed “sunny day” flooding, has been occurring and is gaining national attention. This type of flooding, which occurs independently of rainy weather, has become more frequent and severe as a result of sea level rise and is further exacerbated by the occurrence of king tides. King tides occur when the sun, moon, and earth align during the monthly high tide in a manner that results in an extremely high tide. King tides are a worldwide phenomenon that occur in South Florida during the fall. This year, tidal flooding was worsened by strong easterly winds and swell from Hurricane Nicole. While once a mere nuisance, these high tides are becoming a growing concern among property owners and local governments, as some streets become unpassable for hours at a time, landscaping is damaged, the structural integrity of seawalls is affected, homes and commercial buildings are threatened and waterways become polluted with untreated runoff.
While some are still debating climate change and the causes of sea level rise, the effects from it are indisputable in many South Florida communities. Tidal flooding is going to be a part of the South Florida real estate conversation for the foreseeable future, with considerable legal implications. Does a seller or real estate salesperson have an obligation to disclose seasonal flooding to a buyer? Is seasonal flooding considered a property defect? If so, is seasonal flooding a patent or latent defect? Does a buyer have a claim against the seller or real estate broker if the property is affected by tidal flooding and the flooding was not disclosed to the buyer? Is a property owner liable for tidal water that flows from his or her property onto a neighbor’s property? What should a buyer be researching in its due diligence investigation? Should an owner be fortifying his or her property with seawalls, berms, swales, landscaping, or other similar features? What is local government doing to mitigate tidal flooding? Will local governments require property owners to expend money on measures to mitigate tidal flooding?
Florida case law does not definitively answer these difficult legal questions. We anticipate the number of legal issues to increase as the tidal flooding problem grows along with sea level rise. Sellers of residential property in Florida must disclose material defects that affect property to their buyers. While certain Florida cases have held that seasonal flooding is not a latent property defect that needs to be disclosed to a buyer, these cases are based on specific fact patterns which may not apply to all situations. Sellers and buyers may have different legal considerations given seasonal flooding concerns. Prior to entering a real estate contract, a prudent seller may want to consult with a real estate attorney to determine what disclosures with respect to seasonal flooding, if any, should be made in the contract. Property owners may want to consult a real estate or land use attorney in dealing with governmental regulations that aim to address surface water management stemming from rainfall flooding occurring separately from tidal flooding. Buyers might consider consulting an attorney prior to signing a real estate purchase contract and prior to the expiration of the property investigation period, to ensure they make the right inquiries regarding tidal flooding.