Bulletin: FL2021001

Dear Associates:

Miami-Dade County recently adopted an ordinance, Section 21-49.1, which requires a disclosure for any property which has a septic tank system installed or is serviced by a septic tank system. The ordinance took effect on August 2, 2021. The disclosure must be made at both the time of the sale on a separate sheet of paper in at least 12-point font and in a prominent location on the face of the instrument conveying the affected real property. The ordinance further requires that the instrument contain the signature of the purchaser acknowledging the disclosure and that the signature must be notarized. The form of the acknowledgment required on the deed is as follows: 

I HEREBY CERTIFY THAT I HAVE READ, UNDERSTOOD, AND SIGNED THE SEPTIC TANK SYSTEM DISCLOSURE STATEMENT FOR THE CONVEYANCE OF THIS REAL PROPERTY, AS REQUIRED BY SECTION 21-49.1 OF THE CODE OF MIAMI-DADE COUNTY, FLORIDA. 

The ordinance provides that the failure to disclose will subject the seller to fines; however, it does not affect the insurability of the title. 

The ordinance presents closing agents with two problems. The first is how to determine whether there actually is a septic tank on or servicing the property. This requires a review of the contract. Second, if the ordinance does apply, how to secure the signature of the grantee on the instrument conveying title. While it would not be overly burdensome when the grantee is present at the closing to obtain a signature, the requirement does create a significant obstacle to recording the deed and purchase money mortgage immediately after the closing in cases in which the grantee is in a different location. 

In such cases, one option would be to forward the original deed which has not yet been executed by the seller to the buyer so that the buyer can sign the acknowledgment and return it to the closing agent in time for the seller to sign at closing. Another option is to record the deed without the signature of the grantee on the deed and then once the deed is of record, to send the deed to the grantee for proper execution with instructions to have it returned to your office so that it can be re-recorded in order to comply with the ordinance. 

If the latter arrangement is not acceptable to the seller due to the seller being concerned about being subject to fines, and if the buyer does not sign acknowledging the disclosure then the transaction should not close until the buyer has signed the acknowledgment. In no event should the recording of the deed be delayed after closing.

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