Jordana Sarrell, Esq., LL.M.
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Inactive. Expired. Open. These three verbs when associated with municipal or county permits in a residential real estate transaction can send a buyer, seller, real estate agent or title company into a frenzy. But what is really the responsibility of parties in an AS IS residential real estate transaction with respect to permits?
Most people operate under the presumption that permits are a title issue or in other words covered under a title policy. This is simply untrue. Rather the opposite is true, inactive/open/expired permits are specifically excluded from title insurance policy jackets. So, any inactive/expired/open permits are not covered under your title policy should an issue arise and the title agent is not under any obligation to ensure that they are dealt with.
The standard FARBAR AS IS contract specifically places the onus on the buyer to make an inquiry as to whether there are any inactive/open/expired municipal or county permitsduring the inspection period. What does this mean? It means that if the buyer doesn't conduct a permit inquiry during the inspection period, any inactive/open/expired permits are not required to be closed to finalized the sale.
Moreover, if the buyer discovers inactive/open/expired permits, within the inspection period, the seller is only required to facilitate the closing of those permits and not required to spend any money in the process.
Permits, when not dealt with, however, in some situations amount to a greater problem such as a municipal or county code violation leading to monetary fines. So a prudent real estate attorney representing a buyer will ensure that the contract specifically includes language requiring any inactive/open/expired permits be closed at the seller's sole expense. Or a seller's attorney will leave the contract in its current form as it benefits the seller.
It is always important to have a real estate attorney with you every step of the way from negotiating a contract through closing to ensure you are completely protected. After all buying real estate will likely be the biggest and most important purchase of your life!