Couple told home can’t be built on lot
Question: My husband and I recently purchased a vacant lot in Northwest Cape Coral, on which we wanted to build our retirement home. The lot was presented as a residential lot, and also appeared on the property appraiser site as residential. We applied for a construction loan, and we were told houses can’t be built on the lot, that it is commercial. The city won’t issue a permit! What can we do, either to force the city to allow for a permit (there are houses all over the block), or does the seller have any responsibility?
-Agnes R, Cape Coral
Answer:?There are several factors to consider when determining your options. First, with regard to the sale, did the contract specify what the property will be used for? If the seller prepared the contract, and it said the lot was meant for residential purposes, this could be considered a material misrepresentation and a breach of contract. Other items to look at is how the property was listed in the Multiple Listing Service, and whether it can be shown the seller was aware the property could not be used for residential purposes.
Many people assume that the tax classification code on the Lee County Property Appraiser is definitive on what can be built on property. It is not. Rather, the authority on land use and zoning is the city of Cape Coral in this case. Prior to purchasing any property, an inquiry should be made regarding what can and cannot be placed on the property. The City Council has made an effort for many years to convert property from residential to commercial land use, and many of those changes are recent. If you purchase a house with commercial zoning and land use, you will not be able to rebuild the home after a natural disaster or fire.
You still have a chance to make this property buildable by applying for a change of land use and/or zoning with the city. City staff is available to discuss the situation and the potential pros and cons for approving the change. Ultimately, the City Council would vote to determine if the land use and/or zoning should change.
You may have recourse against the seller or seller’s Realtor depending on the facts surrounding the transaction. Professional guidance should be sought to determine your best path to make this situation better for you.
Eric P. Feichthaler has lived in Cape Coral for 27 years and graduated from Mariner High School in Cape Coral. After completing law school at Georgetown University in Washington, D.C., he returned to Southwest Florida to practice law and raise a family. He served as mayor of Cape Coral from 2005-2008, and continues his service to the community through his chairmanship of the Harney Point Kiwanis Club KidsFest, which provides a free day of fun and learning to thousands of Cape Coral families, and funds numerous scholarships. He has been married to his wife, Mary, for 13 years, and they have four children together. Recently, he earned his board certification in Real Estate Law from the Florida Bar. He is also a Supreme Court Certified Circuit Civil Mediator.
This article is general in nature and not intended as legal advice to anyone. Individuals should seek legal counsel before acting on any matter of legal rights and obligations.