ST. PETERBURG, Fla. — A couple has sued Smith and Associates Real Estate, Inc. and one of its real estate teams for allegedly misrepresenting the nature of insurability of a flood-zoned home they purchased. Their home is located at 1705 Bayou Grand Boulevard in Shore Acres.
In 2012, Jeffrey and Amy Moan purchased a home from real estate agents Deborah Momberg and Lee Stratton. According to the lawsuit, their marketing materials of the two-story home the Moans purchased stated, “A completely insurable first living level offers a nice size living room, bedroom, full bath and a kitchenette…”
The home’s first living level was constructed three feet above sea level.
The Moans purchased the house on December 12, 2012. However, in November 2020, Tropical Storm Eta passed through Shore Acres and completely flooded the first living level. Upon an attempt to repair it, they discovered it was not permittable at three feet above sea level as “livable square footage.” Without the ability to obtain permits, the Moans lost over 1,000 square feet of living space that could not be repaired, except to restore it to a non-living area.
The lawsuit states, “The Moans would not have paid $512,549.17 to purchase the property had they known that it only consisted of 1,440 square feet of permittable and livable space,” which represents the second floor.
The lawsuit claims Momberg and Stratton knew or should have known the home’s first living level was only insurable as “non-living” space and should never have claimed it to be “completely insurable.”
The Free Press spoke with the Moans’ attorney, Nicole M. Ziegler of Emerson and Straw in St. Petersburg regarding various aspects of the case. She stated, “The allegations of the suit are that they represented that the bottom floor – that ground level – was living space, so it was sold at that time as having a bedroom, a living room, a kitchenette and a bath on the first floor, and that was included in the square footage as “livable” square footage that the Moan’s were purchasing – but it wasn’t – and that’s the issue. You can’t represent that as being fully insurable, livable square footage when it’s not.”
Ziegler stated that Momberg and Stratton both listed and sold the house and also referred the Moans to a flood insurance agent whom the Moans used to secure an insurance policy. The language and content of the policy was not verifiable when speaking with Ziegler.
Ziegler believes there were incentives to close the deal, given the fact that the realtors were representing both the sellers and buyers. She said, “There is some evidence in this case that the sellers were becoming impatient in how long it was taking to sell the house, so I think that became an issue for them and unfortunately, it left the Moans in a position of thinking they’re buying a particular property that they weren’t.”
Ziegler recalled that in the past, she had seen a document describing the flood-zoned home as a “three bedroom two bath” house. She stated the document had the real estate Multiple Listing Service’s (MLS) URL listed at the bottom of it. However, the documents describing the home at the time of the Moans’ purchase described it as a “four bedroom three bath” house, indicating that at some point, a previous homeowner elected to make the first-floor level livable space despite its limited insurability.
“This house should always have been listed as a three/two,” she said.
Ziegler said compensation for the Moans are not yet established.
“These are people that have never bought waterfront property before…they’ve never lived here before…I think most people have a difficult time discerning what a policy says…and they’re trusting the professionals representing them.”
“When we have so many people moving here that are from out of state or from within Florida that haven’t bought waterfront property before – this is a cautionary statement for realtors that you have to make true and accurate statements.”
Tampa attorneys Neil A. Sivyer and Paul D. Watson of Sivyer, Barlow and Watson law offices issued defenses against the case. In their tenth Affirmative Defense to the courts, the Defendants stated, “Plaintiffs failed to exercise reasonable care in verifying the square footage and condition of the subject property prior to purchasing it, including their right to repair the property in the event of future, substantial damage as they were contractually obligated to do under the Contract.”
The Defense statements also declare the Moans knew prior to and after the property’s closing process that it was located in a flood zone with regulations, including “in connection with the inspections and surveys performed by Plaintiffs and the insurance maintained by Plaintiffs on the property.”
But Ziegler believes the focus of this case is only to establish that real estate misrepresentation occurred.