I have done a bunch of posts on flooding and storm surge here in Florida and mostly around Jupiter. Things like how to equate storm surge to the elevation of my house. As I did for Ian I looked at the NOAA tide guage and there is one in Ceday Key and it stayed “on line” for the whole storm. The picture says it all…

The storm surge is Cedar Key was the highest at about 1 AM on 27 September and was at ABOUT 13.1′ above the Mean Low Low Water (MLLW) for this location. The calculated tide for this day and location should have been ABOUT 2.75′ BUT the actual tides have been running about 1′ above what they were calulated to be. Still, “storm surge” is defined by NOAA as “Storm surge is an abnormal water level rise generated by a storm over and above the predicted astronomical tide.” The storm surge in Ceday Key for Hurricane Helene was thus ABOUT 13.1′-2.75′ = 10.35′.

If your interested, the MLLW at this location is -2.26′ by the NAVD 88 datum that we use to note things like the finished floor elevation of a house. If the finished floor of your house was ABOUT 8′ (10.35′-2.26′) by the NAVD 88 datum then just in terms of storm surge you should have been just above the water. Note that for Idalia, this number was about +8″ NAVD. But of course then there’s all that rain and then the local wind driven wave action that adds to this. The “localized” flooding.

I did a post on this last year but this year I see that the Palm Beach County Office of Resiliance has notes the dates…

High tides expected within three (3) inches of Action Stage:

September 19–September 21, 2024

October 16, 2024

October 20, 2024

November 14, 2024

November 17–November 18, 2024

High tides expected within three (3) inches of Flood (the worst days) Stage:

October 17–October 19, 2024

November 15–November 16, 2024

OK, so I have talked about the the 19.6 year tidal epoch and the rising sea level in the area and we also have the “King Tides”. NOAA defines a King Tide as : “A King Tide is a non-scientific term people often use to describe exceptionally high tides. Tides are long-period waves that roll around the planet as the ocean is “pulled” back and forth by the gravitational pull of the moon and the sun as these bodies interact with the Earth in their monthly and yearly orbits. Higher than normal tides typically occur during a new or full moon and when the Moon is at its perigee, or during specific seasons around the country.”

In short, “King tides” are a natural part of the tide cycle.

In August of 2024 NAR finalized the settlement of a large court case but this was ONLY applicable to property sales, not rentals.

How does the settlement impact agents when handling rental properties?

A: The field for offers of compensation will no longer be allowed in the MLS, so an agent working with a renter would need to contact the property manager/owner/leasing agent to find out what, if any, compensation is being offered.

Are renters required to sign a Buyer/Tenant Representation Agreement before touring a rental property?

A: The settlement only deals with properties for sale on this issue of buyer representation, and it does not address rentals or change anything about needing a written agreement prior to showing a rental property. It would still be a smart idea to have a conversation with the client about how the agent will be compensated and have the Buyer/Tenant Representation Agreement signed.

In March 2024 FAR updated the Exclusive Right to Lease Listing Agreement .  This form still “reads” like the historic form with a total offer of compensation specified and a percent to be shared with cooperating Brokers.

The MLS however no longer has ANY offer of compensation field for sales, or rental, properties and MLS rules require that listings NOT contain any offer of compensation in the MLS to other MLS Participants and Subscribers.

But again, the NAR settlement was only specific to Buyers and not to Renters.  Still, the Agent working with a prospective Tenant may NO LONGER rely upon any offer of compensation contained in the MLS as it’s no longer in it.

I am of the opinion that “Broker” for the Consumer should execute with the “Consumer” (the prospect Tenant/customer) the Transactional Broker version of the Exclusive Consumer Brokerage Agreement (EBBA-7tb) PRIOR to the Broker for the Consumer showing any property to the Consumer.

To change the EBBA form, OR to cancel it, one should form MEBSSA-1.

Note as well that one could also use the Showing Agreement form (SA-4) which would be specific to showing a Consumer specific properties.  This may be useful to say show the Consumer very specific properties while they are in town.

Prior to showing property to a Consumer who has executed the EBBA the Broker for the Consumer should text the Listing Agent and ask IF the Owner/Landlord has agreed to compensate the Broker for the Consumer?

If the answer is NO, as in the Owner is NOT willing to compensate the Broker for the Consumer, then the Broker for the Consumer should speak to the Consumer and let them know that the Owner/Landlord is not willing to compensate them and that they, the Consumer, will be responsible for the payment of the fee specified on the EBBA.  Note that the EBBA form is applicable to any real property interest acquisition (Buy or Rent) of the type and location specified on the form and for the duration of the agreement.  If they want to contact the LA directly then they would need to ASK if the Broker for the Consumer will agree to cancel the agreement and at that time they would owe the specified cancellation fee.

Assuming that the Owner/Landlord is compensating the Broker for the Consumer and the Consumer wishes to make an offer on the Property then the Broker for the Consumer should text the Listing Agent and state that your customer (the Consumer) is considering making an offer and that before that you will need to send them the Compensation Agreement form CAOT-1.

Because there is no longer any offer of compensation in the MLS the Broker for the Consumer MUST memorialize the compensation agreed to from the Owner/Listing Broker to the Broker for the Tenant (a/k/a Consumer) in a separate written agreement between yourself and the Listing Broker/Owner using form CAOT-1.

Also note that the standard Lease form for a Single Family Home has a clause in it which MAY suffice as well ASSUMING that that the Owner uses this form.

28. BROKERS’ COMMISSION. Check and complete if applicable. The brokerage companies named below will be paid the commission set forth in this paragraph by Landlord Tenant for procuring a tenant for this transaction.

HOWEVER THE STANDARD LEASE FORM FOR A CONDOMINIUM DOES NOT.

There are some big changes for Agents and Buyer in Real Estate in Florida beginning in August of 2024. Basically, all “Customers” (prospective Buyers) who are looking at real estate with an agent (Broker) MUST have in place a written agreement with that Broker (their agent) BEFORE viewing property. For Sellers they must decide if they wish to compensate this agent and if so in what way when they execute the new Listing Agreement? So, the checklist goes like this…

• The listing agent will execute with the Seller a Listing Agreement such as the ERS-20tb. This is the Exclusive Right to Sell the property as a Transactional Broker. Again, in this there are 3 options to compensate the Broker for the Buyer. 1) The Seller pays the Listing Broker say 5% and the Listing Broker pays the agent for th Buyer say 2.5%. 2) The Seller pays the Lising Agent say 2.5% and the Seller pays the agent for the Buyer say 2.5%. Or, 3) The Seller will not compensate the agent for the Buyer.
• The agent for the Buyer will execute with the “Consumer” (the prospective Buyer or Tenant) the Transactional Broker version of the Exclusive Buyer Brokerage Agreement (EBBA-7tb) PRIOR to the Broker (the agent) showing any property to the Consumer. This form is pretty straight forward. Basically it says that the Consumer agrees to use the services of the agent EXCLUSIVELY and IF the Seller will not compensate that agent, then the Consumer agrees to. This agreement MAY be cancelled, at the request of the consumer and agreement by the Broker. IF the Broker agrees to do so then the consumer would pay the agreed upon Early Termination fee.
• Use form MEBSSA-1 to modify or to cancel the EBBA agreement.
• Note as well that one could also use the Showing Agreement form (SA-4) which would be specific to showing the Consumer specific properties.  This may be useful to say show the Consumer very specific properties while they are in town.
• The Agent will then confirm with the Listing Agent of the properties they are showing you as to IF the Seller is willing to compensate them. You should ask your agent IF there are any properties which you have asked to see which the Seller is not agreeing to compensate them for. Keep this in mind when negotiating a price or terms as for these properties you will be expected to abide by the EBBA form you executed. In short, you will need to pay the agent should you enter into a contract for these properties.
• If you want to contact the LA directly then you would need to ASK if the Agent will agree to cancel the EBBA agreement and at that time you would owe them the specified cancellation fee.
• Assuming that the Seller is compensating the Broker for the Buyer and the Consumer wishes to make an offer on a Property for which the Seller is offering compensation then the Agent will need to have form CABB-1 or CASB-1 executed so as to “memorialize” that the Seller is compensating the Broker for the Buyer in one of the two ways specified on the Listing Agreement.

Sellers, Buyers and Agents must all remember that in Florida the real estate Broker is assumed to be working as a Transactional Broker unless and untill another form of agency is entered into. This could be Single Agency or No Brokerage. In a Single Agency relationship the Customer and the Agent are fiduciaries. As such they can be held accountable for the faults of each other. Thus, most Brokerages do not do allow this so as to avoid the liability. And most customers do not like “the sound of that” either. If you choose to NOT involve a real estate agent as a Buyer then you’re going to make, what for most is the single largest purchase of their lives, without professional guidance. Think about that. For the Seller that chooses not to compensate the Broker for the Seller they should understand that unless their agent and the Buyer enter into a No Brokerage Agreement that this agent is specifically prohibited from representing one party to the detriment of the other. And the Buyer is under no obligation to sign a No Brokerage Relationship Disclosure.

FS defines: “Transaction broker” means a broker who provides limited representation to a buyer, a seller, or both, in a real estate transaction, but does not represent either in a fiduciary capacity or as a single agent. In a transaction broker relationship, a buyer or seller is not responsible for the acts of a licensee. Additionally, the parties to a real estate transaction are giving up their rights to the undivided loyalty of a licensee. This aspect of limited representation allows a licensee to facilitate a real estate transaction by assisting both the buyer and the seller, but a licensee will not work to represent one party to the detriment of the other party when acting as a transaction broker to both parties.

(1) BROKERAGE RELATIONSHIPS.—

(a) Authorized brokerage relationships.—A real estate licensee in this state may enter into a brokerage relationship as either a transaction broker or as a single agent with potential buyers and sellers. A real estate licensee may not operate as a disclosed or nondisclosed dual agent. As used in this section, the term “dual agent” means a broker who represents as a fiduciary both the prospective buyer and the prospective seller in a real estate transaction. This part does not prevent a licensee from changing from one brokerage relationship to the other as long as the buyer or the seller, or both, gives consent as required by subparagraph (3)(c)2. before the change and the appropriate disclosure of duties as provided in this part is made to the buyer or seller. This part does not require a customer to enter into a brokerage relationship with any real estate licensee.

(b) Presumption of transaction brokerage.—It shall be presumed that all licensees are operating as transaction brokers unless a single agent or no brokerage relationship is established, in writing, with a customer.

(2) TRANSACTION BROKER RELATIONSHIP.—A transaction broker provides a limited form of representation to a buyer, a seller, or both in a real estate transaction but does not represent either in a fiduciary capacity or as a single agent. The duties of the real estate licensee in this limited form of representation include the following:

(a) Dealing honestly and fairly;

(b) Accounting for all funds;

(c) Using skill, care, and diligence in the transaction;

(d) Disclosing all known facts that materially affect the value of residential real property and are not readily observable to the buyer;

(e) Presenting all offers and counteroffers in a timely manner, unless a party has previously directed the licensee otherwise in writing;

(f) Limited confidentiality, unless waived in writing by a party. This limited confidentiality will prevent disclosure that the seller will accept a price less than the asking or listed price, that the buyer will pay a price greater than the price submitted in a written offer, of the motivation of any party for selling or buying property, that a seller or buyer will agree to financing terms other than those offered, or of any other information requested by a party to remain confidential; and

(g) Any additional duties that are mutually agreed to with a party.

This aspect of limited representation allows a licensee to facilitate a real estate transaction by assisting both the buyer and the seller, but a licensee will not work to represent one party to the detriment of the other party when acting as a transaction broker to both parties.

This question comes up. You go to a walk through and there’s still a bunch of stuff in the house. What now?

First, the Far Bar As-IS contract that we use in the Jupiter are MOST of the time provides that the Buyer be provided access to the Property…

For among other items, a “Walk Through”….

WALK-THROUGH INSPECTION/RE-INSPECTION: On the day prior to Closing Date, or on Closing Date prior to time of Closing, as specified by Buyer, Buyer or Buyer’s representative may perform a walk-through (and follow-up walk-through, if necessary) inspection of the Property solely to confirm that all items of Personal Property are on the Property and to verify that Seller has maintained the Property as required by the AS IS Maintenance Requirement and has met all other contractual obligations.

It’s that last bit that send us back to this part to answer the question….

Where we note the language: “Seller shall have removed all personal items and trash from the Property”

So basically the Seller (Owner) must remove all personal property BUT must have left the Personal Property defined as being included on page 1. So, the 2×4 example. If a 2×4 is laying on the ground it’s personal property. If it’s permanantly afixed to the house, and thus the ground, then it is part of the real property.