By Toby Tobin

Palm Coast, FL – October 3, 2014 – You can’t make this stuff up. Keystone Homes, one of Palm Coast’s most reputable builders, recently completed a million dollar home in Ocean Hammock, one of the area’s most prestigious communities. The 5,306 square foot home offers views of the Atlantic Ocean. It sports five bedrooms, five and one half baths, a theater room, a game room and pool. Unfortunately, it was built on the wrong lot and nobody noticed until months after completion.

The saga

In January 2003, Andrew Massaro and his wife, of North Carolina paid $355,000 for 21 Ocean Ridge Blvd North, a vacant lot in the gated community of Ocean Hammock. Ocean Hammock is part of a larger oceanfront development often referred to as Hammock Dunes. The lot is located on the west side of the street, which parallels the Atlantic Ocean beach.

In June 2012, Mark and Brenda Voss, of Missouri, purchased the vacant lot next to and north of Massaro’s for $160,000. In early 2013, Voss contracted with Keystone Homes to design and build a large home on his lot with the intention of renting it, a use permitted under the documents of the deed restricted community.

Robbie Richmond, V.P. of Keystone Homes, and the contractor of record for the Voss home has been involved at some level with the construction of over 600 homes in Flagler County. The following events were described to me by Richmond and Voss.

Keystone homes ordered a lot survey (standard procedure) from a local company with a track record of performing surveys in Ocean Hammock, including several surveys for luxury homebuilder Stajo Construction. Stajo's long-standing reputation as builder of the most high-end custom homes in the Hammock ads credibility to Keystone's surveyer selection. For privacy reasons, I refer to the surveying company as “Surveyor A.”

Note: The Florida Department of Agriculture and Consumer Services regulates the State’s Surveyor and Mapper program through a Board of Professional Surveyors and Mappers (PSAM). State regulations prohibit the release of company or individual names until a complaint has been filed and the complaint has been ruled to be judicially sufficient. At this point, no complaints have been filed against either of the surveyors in this incident.

Surveyor A subsequent to completing the survey, pinned the corners (marked the location of the outside corners of the building) to determine the exact location of the home relative to the lot boundary.

The Ocean Hammock Homeowners Association’s Architectural Review Board reviewed and approved the building plans.

Flagler County reviewed the plans and issued a building permit to Skyhawk Development Inc (DBA Keystone) May 1, 2013.

A foundation survey was ordered by Keystone and performed by Surveyor A.

Throughout construction, Flagler County and utility companies were involved with the construction at several levels and in several ways.

The site plan, building plans and foundation survey were reviewed by the county before the building permit was issued. A permit will not be issued until parcel ownership is confirmed.

On-site inspections occurred often; rough plumbing, monolithic slab, lintel, exterior strap or clip, roof sheathing, poured cell, window installation, framing, plumbing, H.V.A.C., drywall, insulation, exterior wall sheathing, exterior lath, early power, water and septic and final inspection. In some cases, deficiencies were noted, corrected and re-inspected.

Dunes Utilities hooked up the water supply and installed a meter.

FP&L connected power and installed a meter.

A final “as built” survey was needed before the home could be approved for occupancy. Surveyor A’s schedule was full so Keystone ordered a final survey from Surveyor B. The final survey was presented to Keystone.

Final inspection and approval were issued by the county March 28, 2014.

Based on the final survey performed by Surveyor B, Voss’s lender issued a Title Insurance policy for 23 Ocean Ridge Blvd.

During the construction period, Voss visited the site several times to observe progress. Naturally, several neighbors, as neighbors are wont to do, stopped by to observe or inspect progress. Nobody noticed that anything was amiss.

The number 23 is displayed on the front of the house and on the mailbox in front of the house.

Vacation Rental Pros was engaged by Voss to manage the home’s rental. Click here to see VRP’s webpage describing the home along with dozens of pictures. Notice that two renters have posted glowing reviews, one as early as May.

Fast forward to September 2014; the surveyor of a nearby lot discovered the Voss survey which was reported to May Management, the HOA property manager. May Management notified Keystone on or about September 24th.

All the paperwork appears to be in order indicating the house was constructed on Voss’s lot at 23 Ocean Ridge Blvd. N. Permits, three surveys, the deed, the legal description and the title policy confirm it. Yet the house is on Massaro’s lot.

Apparently, the first survey stakes were incorrectly placed on the Masssaro lot. Based on the false premise that the stakes designated the Voss lot at number 23, construction proceeded. The error remained unnoticed until September, months after the home was first occupied. The following arial is dated 1-15-2014.

How did it happen?

How could everyone miss this monumental error for 18 months? Were there any red flags? If so, how were they missed?

One contributing factor was likely the stark isolation of that stretch of Ocean Ridge Blvd. Number 23 was the 10th of 11 consecutive vacant lots on the west side of Ocean Ridge Blvd. The lots are cleared of trees with no identifiable landmarks left to provide visual clues. There are no reference points at the street. The 12th lot is irregularly shaped with wide frontage. Thr photo below is dated 1-19-2012.

Parcel maps on the Flagler Property Appraiser website clearly show that the northwest corner of the Voss lot has a diagonal line, cutting off the 90 degree corner, making its configuration unique among the other Ocean Ridge lots. Number 21 does not have this diagonal. Yet the signed and sealed surveys from both surveyors show the diagonal. Had they not, it would have been a red flag to anyone viewing the survey.

The first survey apparently set the blunder in motion. The construction process is a series of consecutive steps performed by people from several licensed and regulated trades and professions. Each step relies on the competence of those performing previous steps. Each major step must pass an inspection before the next step can commence.

It’s not reasonable to assume that the validity of the first survey be confirmed before proceeding with each subsequent step of construction. The county approved (but did not verify) the survey. The validity was confirmed by the signed and sealed survey itself, a public record containing the surveyor’s name, stamp or seal and license number. Further, the foundation survey confirms the initial survey.

There was one point where a red flag should have been raised. While performing the final survey, Surveyor B should have picked up the error. Unfortunately that did not happen. It seems that Surveyor B, presumably in the interest of saving time and/or money, used Surveyor A’s foundation survey as a starting point, compromising the results of the final survey.

After learning of the error in September, Keystone immediately notified Voss and Massaro. Keystone has also met with Surveyor A. The status of Surveyor A’s Errors and Omissions insurance policy is in question. If, as seems to be the case, its Errors and Omissions insurance had lapsed, Surveyor A would have been required to disclose that fact on the survey. The survey carries no such disclosure.

Finding a solution

A million dollar house on the wrong lot in a private luxury community is a lawyer’s dream-come-true; like lifetime dancing lessons. Simply put, Voss built a luxury home on Massaro’s lot without Massaro’s permission. But you can’t pick up the three-story block home and pool and move it to the Voss lot next door. That bell cannot be un-rung. A litigated solution would be costly and time consuming. At the least, it would include Voss, Massaro, Keystone, both surveyors, the HOA, the county, the lender and the title insurance company.

Resolving blame and determining compensation could be straightforward, as simple as Voss and Massaro deciding to trade lots – problem solved. On the other end of the spectrum, Massaro could dig in his heals telling Voss, “Thank you for the nice furnished house. Please do not trespass.” There are many possible solutions between the two extremes. To date, the parties have indicated a desire to work out a reasonable solution. In the end, it will depend on what each party’s definition of reasonable is.