HomeMy WebLinkAbout2019-013A3120190004470 RECORDED IN THE RECORDS OF JEFFREY R. SMITH, CLERK OF CIRCUIT COURT INDIAN RIVER CO FL
BK: 3179 PG: 19,1/23/201.9 11:15 AM
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THIS DOCUMENT PREPARED BY:
Elite Title of the Treasure Coast, Inc.
Darlene K. Pegg, CLC President
3055 Cardinal Drive, Suite 105
Vero Beach, FL 32963
ETTC File No.: ET -16537
SHARED APPRECIATION AGREEMENT
INDIAN RIVER COUNTY HABITAT FOR HUMANITY, INC.
THIS AGREEMENT is made on January 17, 2019 (the "Effective Date") by and between
INDIAN RIVER COUNTY HABITAT FOR HUMANITY, INC., a Florida non-profit
corporation ("IRCHFH") and the homeowner ("Homeowner") identified below. The purpose of
this Agreement is to establish Homeowner's and IRCHFH's equity interests in the property in the
event of resale or contingent event, as defined below, and provide certain purchase options for the
parties.
DEFINITIONS
"Homeowner": Roselaine Civil, a single woman
"Property": Lot 38, Waterside, according to the map or plat thereof, as recorded in
Plat Book 26, Page(s) 12, of the Public Records of Indian River County, Florida.
Also known as: 2065 Waterside Way SW, Vero Beach, FL 32962
"Purchase Price": $184,900.00
"Initial Fair Market Value": $185,000.00
"Fair Market Value": The greater of the sales price or market value of the Property as
reasonably determined by IRCHFH, or if such determination is disputed, by appraisal as described
in this Agreement. Fair Market Value is not necessarily determined by the actual sales price of the
Property.
"Habitat Note": Homeowner's promissory note to IRCHFH in the original amount of
$106,380.00.
"SHIP Note": Homeowner's promissory note to Board of County Commissioners of Indian
River County in the original amount of $0.00.
"Second Habitat Note": Homeowner's promissory note to IRCHFH in the original amount
of $77,035.00.
"Appreciation Amount": The increase in the Fair Market Value of the Property from the
Initial Fair Market Value.
BK: 3179 PG: 20
"Homeowner's Equity Interest": The total of the following amounts:
• The deposit or down payment (if any) made by Homeowner toward purchase of
the Property;
PL US
• All principal payments made, if any, on the Habitat Note, the Second Habitat
Note, and the SHIP Note;
PL US
• All principal amounts forgiven, if any, on the Habitat Note, the Second Habitat
Note, and the SHIP Note;
PL US
• Homeowner's share of the Appreciation Amount calculated at the time of
Transfer or Contingent Event, as follows: (i) within the first 5 years after the
Effective Date, 10% of the Appreciation Amount; (ii) between 5 and 10 years
after the Effective Date, 25% of the Appreciation Amount; (iii) between 10 and
15 years after the Effective Date, 50% of the Appreciation Amount; (iv) between
15 years and 20 years after the Effective Date, 75% of the Appreciation Amount:
and (v) 20 years and longer after the Effective Date, the entire Appreciation
Amount. (In the event of foreclosure, deed in lieu of foreclosures or similar
assignment with respect to the Habitat Note, the Second Habitat Note, and the
SHIP Note, Homeowner shall not benefit from any Appreciation Amount
calculated at the time of such Contingent Event);
LESS
• Any amount by which the sales price is below the Fair Market Value;
LESS
• All amounts owing on any mortgage, deed of trust, or lien on the Property, other
than the Habitat Note, the Second Habitat Note, and the SHIP Note.
"IRCHFH Interest": The total of the following amounts:
• The difference between the Purchase Price and the Initial Fair Market Value of
the Property ("IRCHFH Initial Equity");
PL US
Habitat's share of the Appreciation Amount calculated at the time of Transfer or
Contingent Event, as follows: (i) within the first 5 years after the Effective Date,
90% of the Appreciation Amount; (ii) between 5 and 10 years after the Effective
Date, 75% of the Appreciation Amount; (iii) between 10 and 15 years after the
Effective Date, 50% of the Appreciation Amount; (iv) between 15 and 20 years
after the Effective Date, 25% of the Appreciation Amount; and (v) 20 years and
longer after the Effective Date, none of the Appreciation Amount. (Provided,
however, that in the event of foreclosure, deed in lieu of foreclosures or similar
assignment with respect to the Habitat Note, the Second Habitat Note, and the
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BK: 3179 PG: 21
SHIP Note, Homeowner shall not benefit from any Appreciation Amount
calculated at the time of such Contingent Event);
IRCHFH's Interest under this Shared Appreciation Agreement does not include any
interest which IRCHFH or its assignees may have as lenders under the Habitat Note.
"Transfer": Any sale, lease, assignment or other transfer of the Property, or any interest
therein. Transfer shall not mean any of the following, provided that the transferee is bound by and
agrees in writing to be bound by the terms of this Agreement:
• Transfer by gift, devise or inheritance to Homeowner's spouse or children;
• Taking of title by a surviving joint tenant;
Transfer of title to a current spouse pursuant to divorce or dissolution
proceedings;
• Acquisition of title or interest therein through marriage;
• Leasing, renting, assigning or otherwise transferring right of possession of the
Property in accordance with Section 5 below; and/or
• Transfers specifically approved in writing by IRCHFH, which approval may be
withheld in IRCHFH's sole discretion.
"Contingent Event": The death or legal incapacity of Homeowner or abandonment of the
Property by Homeowner, or any foreclosure on the Habitat Note, the Second Habitat Note, or the
SHIP Note (or deed in lieu of foreclosure or other similar assignment). "Legal Incapacity" shall
occur upon any court order or equivalent legal determination, whether voluntary or involuntary,
declaring a status of legal incapacity. The death or legal incapacity of Homeowner shall not be
considered a Contingent Event if the Property will be transferred by will or succession to any
children of Homeowner, or a guardian, trustee or similar arrangement for the benefit of Homeowner
or any children of Homeowner. Abandonment of the Property shall be deemed to occur upon a
finding by IRCHFH that Homeowner has, for a continuous period of not less than ninety (90) days,
ceased occupation of the Property as Homeowner's primary residence, provided that IRCHFH has
given notice to Homeowner not less than thirty (30) days prior to a determination that the Property
has been abandoned.
AGREEMENTS
1. IRCHFH Interest. In consideration of IRCHFH selling the Property to Homeowner
at less than its Initial Fair Market Value and financing the Purchase Price with a no -interest loan,
IRCHFH shall maintain a contingent financial interest in the Property equal to the IRCHFH Interest
defined above. Such interest shall only mature into an ownership interest in the event of a Transfer,
a Contingent Event, or a default by Homeowner under this Agreement or the IRCHFH Note.
Page 3 of 9
BK: 3179 PG: 22
2. IRCHFH Right of First Refusal Upon Transfer
a. Notice of Intention to Transfer. Homeowner shall notify IRCHFH in writing
at least thirty (30) days prior to advertising to Transfer the Property or accepting any
offer to Transfer the Property.
b. IRCHFH Right to Purchase. IRCHFH shall have a right of first refusal to
acquire the Property prior to any Transfer of the Property. Homeowner shall notify
IRCHFH in writing of all proposed terms of any Transfer. IRCHFH shall have thirty
(30) days from receipt of such notice to deliver to Homeowner written notice of
IRCHFH's election to purchase the Property on the same terms specified in the
notice from Homeowner. IRCHFH shall have ninety (90) days after its delivery of
the notice to acquire the Property on such terms.
3. IRCHFH Option Upon Contingent Event. Upon the occurrence of a Contingent
Event, Homeowner shall promptly notify IRCHFH, and IRCHFH shall have the option to purchase
the Property for a price equal to the Homeowner's Equity Interest, calculated as if the Property were
sold at its Fair Market Value, less costs to repair any damage to the Property in excess of normal
wear and tear. If exercised, IRCHFH shall assume or discharge all remaining obligations under the
Habitat Note. The IRCHFH Option must be exercised within ninety (90) days following IRCHFH's
receipt of notice of the Contingent Event.
4. Homeowner's Options
a. Homeowner's Absolute Option. Homeowner shall at any and all times have
the absolute right and option to purchase IRCHFH's Interest in the Property for a
price equal to IRCHFH's Interest, calculated as if the Property were sold at its Fair
Market Value. Homeowner's option shall be exercised by: (i) giving written notice to
IRCHFH; (ii) establishing Fair Market Value of the Property; and (iii) paying the
purchase price through escrow within sixty (60) days from establishment of Fair
Market Value. Exercise of such option shall not discharge or relieve Homeowner's
obligations under the Habitat Note.
b. Homeowner's Option Upon Contingent Event. In the event IRCHFH does not
exercise its option provided in Section 3 for a twelve (12) -month period after the
occurrence of the Contingent Event, the heirs, estate, guardian, successor or person
responsible for Homeowner's property and affairs may purchase IRCHFH's Interest
for a price equal to IRCHFH's Interest, calculated as if the Property were sold at its
Fair Market Value. To exercise such right, such person(s) shall give notice thereof to
IRCHFH within thirty (30) days of the end of such twelve (12) -month period, and
shall conclude such purchase within ninety (90) days of the date of such notice.
5. Leasing of Property. Homeowner shall not lease, rent, assign or otherwise transfer
right of possession of the Property independent from the fee ownership of the Property without the
express written consent of IRCHFH, which consent IRCHFH may withhold at its sole and absolute
discretion, provided that if circumstances beyond Homeowner's control so necessitate, Homeowner
may lease the Property for a period not to exceed one (1) year, upon terms and conditions
reasonably acceptable to IRCHFH. If the Property is leased, rented, assigned, or right of possession
is otherwise transferred in accordance with this Agreement, Homeowner shall pay to IRCHFH each
Page 4 of 9
BK: 3179 PG: 23
month an amount equal to the net rental profit for such month, such profit being the excess of the
monthly rental over obligations under the Habitat Note and for current property taxes and insurance.
6. Distribution of Proceeds of Sale or Transfer. Proceeds of sale or Transfer of the
Property, other than upon IRCHFH's exercise of its option upon Contingent Event, shall be
distributed as follows:
a. First, to payment of costs of sale, including broker's fees and seller's share of
closing costs;
b. Second, to discharge any balance owing on the Habitat first mortgage;
Third, to discharge any balance owing on a HABITAT SECOND mortgage;
d. Fourth, to discharge any balance owing on a Habitat second mortgage;
e. Fifth, to discharge IRCHFH's Interest under this Shared Appreciation
Agreement;
f. Sixth, to discharge any balance owing on any other mortgage, deed in lieu, or
lien on the Property and any amount owing to IRCHFH as damages for default under
this Agreement; and
g. Seventh, to Homeowner.
Example. As an example, assume Homeowner purchased the home for $138,000.00
and the initial fair market value based on a current appraisal is also $138,000.00. In ten
years, Homeowner wishes to sell the Property either to IRCHFH, based on the First Right of
Transfer, or to an uninterested party. Assuming the new sales price would now be
$250,000.00, and a new Fair Market Value based on a current appraisal, is established at
$250,000.00, at the time of closing of the Property, the outstanding balance on the first
mortgage to Habitat, the balance on the HABITAT SECOND mortgage, the balance on the
second Habitat mortgage and any other outstanding liens would be deducted and
Homeowner would receive the balance of their equity in the Property, including, but not
limited to, a percentage of the Appreciation Amount based on this Agreement and equity
payments made when paying down the Habitat first mortgage.
Appreciation Amount
$ 250,000 FMV at Sale
- 138,000 Initial FMV
$ 112,000 Appreciation Amount
Homeowner's Equity Interest
$ 20,040 Total Principal Payments on Habitat Note
+ 56,000 50% of Appreciation Amount
$ 76,040 Total Homeowner's Equity
Page 5 of 9
BK: 3179 PG: 24
IRCHFH's Interest
$ 56,000 50% of Appreciation Amount
Totals
$ 76,040 Homeowner's Equity Interest
+ 30,471 First mortgage balance to IRCHFH
+ 57,489 SHIP mortgage balance
+ 30,000 IRCHFH second mortgage balance
+ 56,000 IRCHFH interest
$ 250,000 Sales Price
7. Term. This Shared Appreciate Agreement shall commence upon transfer of title to
the Property to Homeowner and shall end on the earlier of: (i) purchase of IRCHFH's Interest; (ii)
sale or Transfer of the Property and payment in full of IRCHFH's Interest; (iii) exercise of
IRCHFH's option under Section 3; and (iv) the original maturity date of the Habitat Note.
8. Homeowner's Refinance Rights. Homeowner may pledge the Property by
mortgage or deed of trust to secure a loan, provided that the amount of the loan may not exceed
eighty percent (80%) of the amount that Homeowner would receive under Section 6 of this
Agreement from proceeds of a sale at Fair Market Value.
9. Uses and Maintenance. Homeowner shall use the Property only for single-family
residential use as the primary residence of Homeowner and Homeowner's family, except as
specifically provided in this Agreement. Homeowner acknowledges that the Property is in good
condition and agrees to maintain the Property in as good a condition as received, normal wear and
tear excepted. Homeowner shall comply with all laws, codes, statutes and regulations of
governmental bodies and/or applicable homeowners' associations in use and occupancy of the
Property.
10. Insurance. Homeowner shall maintain full fire and extended coverage insurance in
the amount of the replacement cost of the Property, and public liability insurance in an amount of at
least $300,000. All insurance policies shall name IRCHFH as an additional insured and loss payee,
and shall be with companies and on forms reasonably approved by IRCHFH.
11. Taxes. Homeowner shall pay all property taxes and assessments promptly when due.
12. Default. Upon default by Homeowner, not cured within thirty (30) days after notice
from IRCHFH, of any of the obligations in this Agreement, the Habitat Note, the Second Habitat
Note, or the SHIP Note, or any mortgage securing any of said notes, IRCHFH shall have the right
to purchase the Property in the same manner and terms as upon the occurrence of a Contingent
Event described in Section 3, and shall have the right to all remedies for damages or injunctive
relief available at law or equity.
13. Appraisal. Any dispute regarding the Fair Market Value of the Property shall be
resolved by appraisal as follows: IRCHFH and Homeowner shall mutually select an appraiser
whose determination shall be deemed the Fair Market Value. If IRCHFH and Homeowner cannot
mutually agree on an appraiser, each shall select an appraiser who shall each submit an appraisal. If
Page 6 of 9
BK: 3179 PG: 25
the two appraisals differ by no more than ten percent (10%), then the average of the two appraisals
shall be deemed the Fair Market Value. If the appraisals differ by more than ten percent (10%), the
two appraisers shall mutually select a third appraiser. The third appraiser shall then select that
appraisal that he or she deems to be the closest to the Fair Market Value, and such selected appraisal
shall be deemed to be the Fair Market Value. All costs of appraisal shall be born by Homeowner.
14. Mortgage. This Agreement is secured by the Property described herein. The
obligations secured hereby are subordinate to the Habitat Note, the Second Habitat Note, and the
SHIP Note, and any mortgage securing any of said Notes.
15. Joint and Several Liability. Each of the persons executing this Agreement as
Homeowner shall be jointly and severally liable for each and every obligation arising hereunder.
16. Severability. In the event that any provision herein is held by a court to be invalid or
unenforceable, such holding shall not render invalid or unenforceable any other provision hereof,
each provision being expressly severable and independently enforceable to the fullest extent
permitted by law.
17. Waiver. No waiver by IRCHFH of any breach by Homeowner of any covenant,
condition or 'restriction contained herein shall be effective, unless such waiver is in writing by
IRCHFH and delivered to Homeowner. The waiver by IRCHFH of any breach or breaches, or the
failure by IRCHFH to exercise any right or remedy with respect to any such breach or breaches,
shall not constitute a waiver or relinquishment for the future of any such covenant or condition, nor
bar any right or remedy of IRCHFH with respect to any such subsequent breach.
18. Notices. Any notice given pursuant to this Agreement shall be in writing and shall be
served either personally or delivered by U.S. Mail, with postage prepaid, return receipt requested, or
if to Homeowner, by a posting of the notice at the front door of the Property. Notices shall be
deemed received at the earlier of actual receipt, three (3) days following deposit in U.S. Mail with
postage prepaid, or posting on the front door of the Property. Notices shall be addressed to the
respective parties, as follows:
Homeowner: Roselaine Civil
2065 Waterside Way SW
Vero Beach, FL 32962
IRCHFH: Indian River County Habitat for Humanity, Inc.
4568 North U.S. Highway 1
Vero Beach, FL 32967
19. Entire Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes all other agreements, written or oral, between the parties, with respect to
shared appreciation, equity interests, rights of first refusal, and purchase options with respect to the
Property. This Agreement may only be modified in writing, and no such modification is effective
unless signed by all parties hereto.
Page 7 of 9
BK: 3179 PG: 26
20. Governing Law. This Agreement and the rights and obligations of the parties shall
be interpreted, construed and enforced in accordance with the Laws of the State of Florida and the
parties hereto hereby irrevocably consent to the jurisdiction and proper venue of any action in the
Nineteenth Judicial Circuit in Indian River County, State of Florida. If any term or provision of this
Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall
not be affected, and each provision of this Agreement shall be valid and enforced to the fullest
extent permitted by Law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
written above.
Homeowner:
IRCHFH:
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Roselaine Civil
INDIAN RIVER COUNTY HABITAT FOR
HUMANITY, INC., a Florida non-profit
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corporation
11 Wig By: V Date She 1 S.itoe, President
(Corporate Seal)
Page 8 of 9
BK: 3179 PG: 27
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
The foregoing instrument was acknowledged before me this
Roselaine Civil, who is personally known to me, or who produced
identification.
(SEAL)
STATE OF FLORIDA
COUNTY OF INDIAN RIVER
47
day of January, 2019 by
a valid drivers llepnsfi as
Notary PublicU)PAR.ENEk. PEGG
Printed Name:
My Commission Expires:
•,;;�� "'� DARLENE K. PEGG
:Commission # GG 055202
Expires April 14, 2021
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The foregoing instrument was acknowledged before me this day of January, 2019, by
Sheryl S. Vittitoe, President of INDIAN RIVER COUNTY HABITAT FOR HUMANITY,
INC., who is personally known to me, or who produced r.as
identification.
(SEAL)
Notary Public IDARLE4r, K. P6GG
Printed Name:
My Commission Expires:
Page 9 of 9
Y.`' ••.,, DARLENE K. PEGG
;=Commission # GG 055202
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�= Expires April 14, 2021
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