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Now That Safety Reform Legislation Has Passed, Prepare!

Now That Safety Reform Legislation Has Passed, Prepare!

  • Posted: Jun 30, 2022
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Now That Safety Reform Legislation Has Passed, Prepare!

What To Do Now That New Legislation Has Passed

Now That Safety Reform Legislation Has Passed, Prepare!

by Enrolled Agent Steven J. Weil, Ph.D., EA, LCAM, Royale Management Services, Inc.

The tragedy at Surfside was a wake-up call for many of Florida’s high-rise residents and legislators.

To recap, in a Special Session on May 26, 2022, the Florida Legislature unanimously passed Senate Bill 4-D. The Safety Reform Bill comes with a deadline of December 31, 2024.

This means that Florida has now imposed a state-wide structural inspection program for condominium and cooperative associations that are three (3) stories or more in height. Buildings with a certificate of occupancy that was issued on or before July 1, 1992 must have an initial “milestone inspection” performed before December 31, 2024.

What is a Milestone Inspection?

A milestone inspection is a structural inspection of a building’s load-bearing walls and primary structural members/systems. They must be performed by a Florida licensed engineer/architect who must attest to the life safety and adequacy of structural components of the building.

The inspection consists of two phases:

Phase one — Visual examination of habitable and uninhabitable areas of a building. If there are no signs of structural deterioration found, phase two is not required.

Phase two — If substantial deterioration is found during phase one, phase two may involve destructive or nondestructive testing at the inspector’s discretion. This additional inspection may be as extensive or limited as necessary to fully assess areas of distress.

Community association managers or management companies working with associations that are subject to this inspection must comply as directed by the board. Upon receiving notice from a local law enforcement agency, condominium/cooperative associations will have 180 days to complete phase one of the inspection.

What About Reserves?

Beyond that, also effective December 31, 2024, no unit owner-controlled condominium or cooperative will be permitted to vote to waive or partially fund their reserves.

Condominiums and cooperatives must adequately fund reserve accounts, and the amount is determined by the most recent structural integrity reserve study, also required.

Unanswered Questions Remain!

What are the definitions and requirements for certain items that will be hashed out in the coming months by state and local building departments and regulators?

What will the costs be for milestone inspections and required reserve studies?

Will there be enough Florida licensed Engineers and Architects to handle the number of statewide inspections?

How much will the new mandatory reserve items add to the cost of owning and or renting in a condominium or coop?

What provisions, if any, can be made for financing the necessary phase two required repairs?

What Does It All Mean for Boards and Residents?

Clearly, the short answer to the question “what now” is PREPARE.

Costs of materials are rising. The sooner the work gets done, the lower the cost is likely to be. It makes sense to start now to interview potential engineers and architects.

It makes sense for Boards to review association documents and to educate residents about how the new laws will affect them.

Deciding what repairs to make will surely be controversial.

Many associations have not been funding reserves or only partially funding them for years. The mandatory change to fully fund is sure to be a costly and unwelcome adjustment.

It does seem clear that based on the new law the cost of maintaining and living in an association will increase and that this will impact many of the residents.

Royale Management Services, a registered and licensed community association management corporation in Florida, works with association Boards of Directors throughout South Florida to oversee the daily activities required for proper management, helping to educate them on their responsibilities, duties, and obligations. Royale’s team members are highly trained in all aspects of community association management and customer service to ensure that proper procedures are followed that keep the association in compliance with all of the rules governing elections, budgeting, accounting, operation, collection and assessment. The firm and its president are members of the Community Association Institute (CAI) and the Fort Lauderdale Chamber of Commerce.

THE NEW CONDO LAWS —- MANDATORY INSPECTIONS – PART ONE & PART TWO

THE NEW CONDO LAWS —- MANDATORY INSPECTIONS – PART ONE & PART TWO

  • Posted: Jun 14, 2022
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Let’s start discussing the new condominium laws that go into effect on July 1st.  We won’t cover them all in one week, so look forward to next week’s blog as well.

IF YOU HAVE A MANAGEMENT COMPANY the statute says:

If a community association manager or a community association management firm has a contract with a community association that has a building on the association’s property that is subject to s. 553.899, (the Mandatory Inspections statute) the community association manager or the community association management firm must comply with that section as directed by the board.

This is a weird provision to me.  Clearly, it’s warning managers and management companies to comply with the new mandatory inspection statute. But it also says “as directed by the board.”  What does that mean?  Suppose the board tells the manager that they are deliberately not complying with the new mandatory inspection statute? Does that get the management company off the hook?  Can the management company now sit back and do nothing?  I certainly don’t think that’s the intent of the statute, but it should definitely be clearer.  In any event, at least to me, the management company must not hinder the association’s efforts to comply with the new mandatory inspection statute.  If I were a manager or management company, I would document my efforts thru e-mails to all of the Board members urging them to comply and reminding them of their responsibility to comply with the new mandatory inspection requirements.

Remember, prior to this new law becoming effective, only Dade and Broward had mandatory / structural inspection requirements.  Well, we now have in every Florida county something called milestone inspections — and there is part one and part two.

In every county in Florida, your first milestone/structural  inspection is after 30 years and every ten years thereafter.  But, if your condo is ON THE COAST or within three miles of the coast, your first milestone/structural inspection is AFTER TWENTY FIVE YEARS AND EVERY TEN YEARS THEREAFTER. And this applies to every condo or co-op that is three stories or more in height by December 31 of the year in which the building reaches 30 years of age

The structural inspection of a building, including an inspection of load-bearing walls and the primary structural members and primary structural systems, must be done by by a licensed architect or engineer authorized to practice in this state for the purposes of attesting to the life safety and adequacy of the structural components of the building and, to the extent reasonably possible, determining the general structural condition of the building as it affects the safety of such building, including a determination of any necessary maintenance, repair, or replacement of any structural component of the building.

If the building’s certificate of occupancy was issued on or before July 1, 1992, meaning that you are already 30 years old, the building’s initial milestone inspection must be performed before December 31, 2024.

 

Here is what’s required in a Phase One Inspection:

PHASE ONE — (a) For phase one of the milestone inspection, a licensed architect or engineer authorized to practice in this state shall perform a visual examination of habitable and nonhabitable areas of a building, including the major structural components of a building, and provide a qualitative assessment of the structural conditions of the building. If the architect or engineer finds no signs of substantial structural deterioration to any building components under visual examination, phase two of the inspection, as provided in paragraph (b), is not required.

In all candor, in a post Champlain Towers world, if I’m the phase one guy — I don’t want to be sued for saying this building is in perfect shape and doesn’t even need a phase two inspection.  I think the Phase One Inspection will Always result in the First architect or engineer calling for a Phase Two study.  What does he or she have to lose?

MANDATORY BUILDING INSPECTIONS – PART TWO

By Eric Glazer, Esq.

So last week we discussed the fact that the change in the law will now require every condominium building in the state that is 3 stories or higher and at least 30 years old (25 years old if within 3 miles of the coast) to undergo a Phase One inspection, every 10 years, by a licensed architect or engineer who is looking for visual signs of structural damage to the building.

Now if I’m the guy doing the Phase One Inspection, it’s pretty likely that I’m going to find something that requires a Phase Two inspection.  Why not?  Is it worth the potential liability for saying the building is fine and then someone is injured or killed because of a structural defect?  Of course not.  So count on lots of Phase Two Inspections.  Here is what that entails:

 

PHASE TWO – Only If found to be necessary after the Phase One Inspection

(b) A phase two of the milestone inspection must be performed if any substantial structural deterioration is identified during phase one. A phase two inspection may involve destructive or nondestructive testing at the inspector’s direction. The inspection may be as extensive or as limited as necessary to fully assess areas of structural distress in order to confirm that the building is structurally sound and safe for its intended use and to recommend a program for fully assessing and repairing distressed and damaged portions of the building. When determining testing locations, the inspector must give preference to locations that are the least disruptive and most easily repairable while still being representative of the structure. An inspector who completes a phase two milestone inspection shall prepare and submit an inspection report pursuant to subsection (8).

(8) Upon completion of a phase one or phase two milestone inspection, the architect or engineer who performed the inspection must submit a sealed copy of the inspection report with a separate summary of, at minimum, the material findings and recommendations in the inspection report to the condominium association or cooperative association, and to the building official of the local government which has jurisdiction. The inspection report must, at a minimum, meet all of the following criteria:

(a) Bear the seal and signature, or the electronic signature, of the licensed engineer or architect who performed the inspection.

(b) Indicate the manner and type of inspection forming the basis for the inspection report.

(c) Identify any substantial structural deterioration, within a reasonable professional probability based on the scope of the inspection, describe the extent of such deterioration, and identify any recommended repairs for such deterioration.

(d) State whether unsafe or dangerous conditions, as those terms are defined in the Florida Building Code, were observed.

(e) Recommend any remedial or preventive repair for any items that are damaged but are not substantial structural deterioration.

(f) Identify and describe any items requiring further inspection.

THE ASSOCIATION’S RESPONSIBILITY

(9) The association must distribute a copy of the inspector-prepared summary of the inspection report to each condominium unit owner or cooperative unit owner, regardless of the findings or recommendations in the report, by United States mail or personal delivery and by electronic transmission to unit owners who previously consented to receive notice by electronic transmission; must post a copy of the inspector-prepared summary in a conspicuous place on the condominium or cooperative property; and must publish the full report and inspector prepared summary on the association’s website, if the association is required to have a website.

 (10) A local enforcement agency may prescribe timelines and penalties with respect to compliance with this section.

(11) A board of county commissioners may adopt an ordinance requiring that a condominium or cooperative association schedule or commence repairs for substantial structural deterioration within a specified timeframe after the local enforcement agency receives a phase two inspection report; however, such repairs must be commenced within 365 days after receiving such report. If an association fails to submit proof to the local enforcement agency that repairs have been scheduled or have commenced for substantial structural deterioration identified in a phase two inspection report within the required timeframe, the local enforcement agency must review and determine if the building is unsafe for human occupancy.

The bottom line is that if forced to do a Phase One inspection, you can ensure you will be required to do a Phase Two Inspection.  The Phase Two Inspection will be costly and the architect or engineer performing the study has full reign over the property.  What they say needs fixing, needs fixing.  And what do they have to lose in stating that certain structural repairs should be made?  On the other hand, they have a lot to lose if they don’t recommend a fix and catastrophe strikes.  Rest assured that Phase Two Study will require repairs and they won’t come cheap.

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WHO REPAIRS THE INCIDENTAL DAMAGES CAUSED BY THE ASSOCIATION? Article by KBR Legal

WHO REPAIRS THE INCIDENTAL DAMAGES CAUSED BY THE ASSOCIATION? Article by KBR Legal

  • Posted: Jun 14, 2022
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WHO REPAIRS THE INCIDENTAL DAMAGES CAUSED BY THE ASSOCIATION?

 Imagine: the association has just informed you it is set to begin a massive concrete restoration project. As part of the project, the contractor will need access to the rebar beneath the concrete slab connected to (or in legalese, “appurtenant to”) your unit’s balcony. To access the balcony slab, the contractor will have to remove the custom Italian tiles you just installed on your balcony. Who is responsible for the costs of the removal? Who is responsible to replace the tiles? The answers to these questions will largely depend on whether the governing documents of the association include an “incidental damage clause” and the specific circumstances of the situation, too.

In its most simplistic sense, an incidental damage clause in the declaration means that the association is responsible to repair any “incidental damage” caused by the association’s exercise of its maintenance, repair, and/or replacement responsibility. However, the existence or absence of such language is not always dispositive as to the repair responsibility. This is similar to “i” before “e” unless after “c” as there always seem to be exceptions.

For example, the repair and replacement obligation of the association may be limited only to damage caused to the unit and not cover any owner improvements to limited common elements, such as the balcony; or the obligation may be limited to damage to improvements only as originally installed by the developer, too. Whether the association or the owner will be responsible to repair the damage is highly fact-specific and will depend on the exact language in the governing documents of the association. Arbitration decisions of the Division of Florida Condominiums, Timeshares, and Mobile Homes (the Division), discussed below, provide some guidance as to when the association may be responsible for incidental damage and when the owners will be responsible to repair same. That said, bear in mind that such decisions are not precedential and in addition only apply to the parties in the arbitration that resulted in the Division’s order. However, it does provide a good understanding of how the Division may rule in a similar circumstance.

As discussed above, where the governing documents contain incidental damage language, and the association damages a portion of the unit while conducting its maintenance, repair, and replacement responsibility, the association is likely responsible for the repair. This is illustrated in Rock v. Point East Three Condominium Corporation, Inc., Arb. Case No. 99-0220, Final Order (September 29, 2000).

In Rock, the association removed a shelf located under a sink and several wall tiles in order to repair rough plumbing in the common elements. The association replaced the wall tiles but did not replace the shelf after the repairs were completed. The unit owner sought, among other things, to have the association replace the shelf. The unit owner also sought to have the association repair tiles in the dining room of the unit which had “popped up” as a result of an unrelated water leak. The association’s declaration of condominium provided that the association was responsible to repair conduits and rough plumbing and provided that “[a]ll incidental damage caused to an apartment by such work shall be promptly repaired by the association.” The arbitrator ordered the association to replace the shelf, holding that the incidental damage to the shelf was caused by the repair to the rough plumbing, which was the association’s duty to maintain. As such, the incidental damage language of the declaration applied to the shelf. However, the arbitrator held the association was not responsible to replace the tiles in the dining room, as the damage to the tiles was not incidental to any work the association performed to repair the rough plumbing.

Therefore, Rock clearly establishes that while an association is responsible to repair portions of the unit that are damaged as a result of the association’s exercise of its maintenance, repair, and replacement obligation, the damage must be incidental to the association’s work.

If the declaration requires the association to repair or replace incidental damage to the unit, the association will likely be responsible to repair and replace owner modifications to the units, too, unless the declaration provides otherwise. In Brickell Town House Association, Inc. v. Del Valle, et al., Arb. Case No. 95-0133 Final Order (September 12, 1995), the association was required to remove certain owner-installed alterations to the unit in order to access and maintain the common elements. The unit owners asserted that the association was responsible to replace the alterations in accordance with the incidental damage provision in the declaration of condominium. The arbitrator agreed, holding that the association was required to reimburse the owners for the expenses required to restore the units to the condition which existed immediately prior to the association’s reconstruction activities, including betterments which were added by the unit owners since the original construction of the units by the developer.

In accordance with the holdings in Brickell and Rock, if the governing documents provide that the association is responsible for incidental damage to the unit, the association will likely be responsible to repair any portions of the unit damaged by the association’s exercise of its maintenance, repair, and replacement responsibility, including alterations made by owners (unless specifically provided for otherwise).

On a different note, if the governing documents of the association contain incidental damage language which is specific to damage caused to units, then the association will not be responsible for incidental damage caused to owner modifications to the common elements or the limited common elements. Similarly, the association will likely not be responsible to repair any damage to any owner alteration to a unit where the declaration required association approval and the owner failed to obtain same prior to installation of the improvement.

In Continental Towers, Inc. v. Nassif, Arb. Case No. 99-0866, Summary Final Order (November 24, 1999), the association needed to conduct concrete restoration, waterproofing, and other repairs to the unit owner balconies. The unit owners had installed tiles on the balcony and argued that the association was responsible for the replacement of the tile because the declaration provided that the association was responsible for incidental damage to the unit. However, the balcony was part of the common elements, not the unit. Therefore, the incidental damage language in the declaration did not apply to the tile, and, absent any other agreement between the parties, the association had no responsibility to repair and replace same. The arbitrator concluded that:

…in the absence of an agreement between the parties or a controlling provision of the documents, ‘it cannot be said from the mere fact of association permission that the association has assumed the perpetual obligation to remove and replace the personal property when necessary to repair and replace the common elements.’ The arbitrator adopts the rationale articulated in the Carriage House case. Since the balcony is a part of the common elements, and the tile was not part of the original construction, the unit owners are responsible for its removal and replacement.

Further, where there are owner modifications which were not approved as required by the declaration, the association will likely not be responsible to repair notwithstanding the incidental damage requirement set out in the declaration. In Harrison v. Land’s End Condominium Association, Inc., Arb. Case No. 94-0298, Final Order (June 27, 1995), the association was required to remove an owner-installed balcony finish in order to effectuate repairs to the balcony slab. In this case, the balcony was considered part of the unit, and the declaration contained a provision requiring the association to repair incidental damage to the unit. The declaration also required the owner to obtain approval of the association before making any alterations to the bal-cony. However, the owner never obtained such approval. Therefore, despite the incidental damage provision, the arbitrator determined that the association was not responsible to replace the balcony finish because the owner did not obtain association approval as required by the declaration.

Therefore, if an alteration requires association approval and an owner fails to obtain such approval, the association will far more likely not be responsible to repair any incidental damage to the alteration notwithstanding the existence of incidental damage language.

Generally, the association’s repair obligation is limited to actual damage caused to the unit as a result of its maintenance, repair, and replacement obligation. If the unit owners are required to vacate their unit in order for the association to effectuate the repairs, the association is not generally responsible to reimburse the owners for the costs of same. However, as the Brickell case, discussed above, shows us, that is not always the case. In Brickell, the owners also argued that the association was responsible to reimburse them for the costs they incurred in vacating the unit for the repairs. In this case, the association chose to proceed with a method of repairing damage to common element pipes from the interior of the units, which required the unit owners in the affected units to vacate. The association did not explore an option in which the repairs could be made from the exterior, which would permit the unit owners to remain in the unit. The arbitrator agreed with the owners and ordered the association to pay for the costs the owners incurred in vacating the units. As you can glean, this case is very fact specific, which led to this outcome.

In an order denying the association’s motion for rehearing, the arbitrator in Brickell, reiterated its earlier decision that the board, within its business judgment, decided to proceed with a method of reconstruction that required the removal of the owners. Therefore, the expenses of those owners are a common expense to be borne by all owners. The important consideration in this case was the fact that the association proceeded with the repairs from the interior without exploring options to proceed from the exterior. The arbitrator notes that the order should not be construed to mean that an association would be responsible for accommodations for all unit owners in the event that the condominium building had to be tented for termites, or if a hurricane rendered the building uninhabitable. In those cases, all owners would be required to vacate the units, and there can be no other decision of the board. Additionally, in Brickell, if there was no way for the association to make the repairs that would allow the owners to remain in unit, the arbitrator’s decision may have been different. How-ever, as the association chose to displace certain unit owners to effectuate the repairs without exploring any other options, the association was responsible for the owners’ costs to vacate.

Finally, even when there is no incidental damage language in the governing documents, the association may be responsible for damage to the units if the association fails to conduct necessary maintenance to the common elements, when the association knows that such maintenance is necessary. In Dibiase v. Beneva Ridge, Arb. Case No. 92-0210, Final Order (January 19, 1994), the association was aware that the common element parking area was consistently flooding into an owner’s unit. The association retained an engineer to conduct a drainage study, and the engineer recommended several remedial measures to address the drainage problem. While the association took some remedial steps, the association did not follow through on the study’s recommendations. The arbitrator concluded that the association was responsible for the owner’s costs to repair the unit caused by the flooding. The arbitrator explained that, while “[n]o association is required to protect the property against a 100-year storm…” the association was responsible to take those steps reasonably necessary to protect the condominium property.

As the association had an expert report that advised if the association did not take certain remedial measures, the damage to the condominium property would continue, the association had an obligation to make the repairs. As the association failed to follow the report, it was responsible for the damage caused to the unit.

In accordance with the decision in Dibiase, if the association receives a report from an expert advising that certain repairs must be performed, and the association fails to take action, the association may be responsible for the costs of any damage to the units caused by its failure to act.

As you have likely gleaned from the foregoing discussion, it can be difficult to determine who is responsible to repair and replace improvements damaged during the association’s exercise of its maintenance, repair, and replacement obligations. Given the complexities of the issue, your association should consult with its legal counsel with any inquiries regarding the association’s responsibility for incidental damage.

Kaye Bender Rembaum

We are dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns. Our areas of concentration include

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Statutory Meeting Requirements by Becker

Statutory Meeting Requirements by Becker

  • Posted: Jun 11, 2022
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Many condominium and homeowners’ associations’ activities are required to have a certain amount of transparency.

One way that association activities are made transparent is through statutory provisions requiring most kinds of meetings to be open and noticed to the membership. In fact, applicable laws governing the operation of condominium and homeowners’ associations allow board members to communicate by email but prohibits them from voting on issues by email.

Notably, a gathering of a quorum of board members to conduct association business is considered a board meeting (whether taking place in person or by real-time electronic means) and is required to be noticed and open to association members. However, two important exceptions apply. Namely, meetings of the board or an association committee at which the association’s attorney is participating for the purpose of rendering advice upon proposed or pending litigation are not required to be open to association members. Similarly, board meetings held to discuss personnel matters are also not required to be open to association members.

Association members are entitled to speak at open meetings on “designated items” (HOA) or an item on the agenda in a condominium. However, the rights of members to speak at meetings is subject to any rules adopted by the association governing the frequency, duration, and manner of member statements. The right to attend open meetings includes the right to tape record or videotape them, as long as such recording activity is not disruptive. Furthermore, the Division of Florida Condominiums has adopted rules regarding recording condominium association meetings (found in Fla. Admin. Code Rule 61B-23.002(10)), and the Homeowners’ Association Act provides that homeowners’ associations may adopt their own pertaining to recording homeowners’ association meetings.

As such, there are statutory meeting requirements that must be followed for board meetings which must be kept in mind when an association is adopting or changing its procedures. Failing to follow the basic statutory requirements may result in problems. Questions about board meetings, committee meetings, which have their own set of requirements, and members’ meetings should be directed to legal counsel for guidance.

Does your community give residents the ability to make online payments? 

Does your community give residents the ability to make online payments? 

  • Posted: Jun 08, 2022
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Does your community give residents the ability to make online payments? 

Concierge Plus give residents more convenience and control by allowing them to view their account and pay charges from their bank account or credit/debit card – all integrated with your existing accounting platform!
  • Spend less time collecting and depositing checks by automating the payment process for your residents.
  • Residents can make recurring or one-time payments from their bank account by ACH or by using a debit/credit card.
  • Residents can access a history of charges and payments on their unit anytime, from any device.
  • Payments are deposited and settle directly into your bank account.
  • Built-in reminder email campaigns help drive online payment adoption and automatically remind residents that they have an overdue balance.
  • Flexible fee structure allows you to pay transaction fees or pass them on to residents.

“I love the platform. I think it’s extremely user friendly and it has so many functionalities. It’s my favorite platform and my favorite tool.” 

Joy Gilbert, Community Property Manager

The Building Group
Book a meeting with me now and let me show you our fully integrated, easy payment solution that gets results.
Best Regards,
—
Charlote Alvarez
Business Development Representative — Concierge Plus
T: 305-850-7676 x114
charlote.alvarez@conciergeplus.com
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Florida residential property owners are subject to restrictive covenants on their property, be it by a declaration of condominium or declaration of covenants.

Florida residential property owners are subject to restrictive covenants on their property, be it by a declaration of condominium or declaration of covenants.

  • Posted: May 30, 2022
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Robert L. Kaye, Esq., BCS | Legal Morsels

A large percentage of Florida residential property owners are subject to restrictive covenants on their property, be it by a declaration of condominium or declaration of covenants.  In addition to these restrictions, Florida Statutes contain additional restrictions that apply to these properties, some of which involve use restrictions.  For condominiums, the provisions of the statutes are of a heightened significance because but for the statutes, condominium ownership of property does not exist.  However, for homeowners’ associations, restrictive covenants have been in use for centuries, well in advance of the existence of such statutes.  As a result, certain statutory provisions may not apply to every homeowners’ association in Florida.

There is a restriction within both the U.S. and Florida Constitutions that limit the ability of the state to enact a law that will impair an existing contract or vested contractual right.  Use restrictions contained in declarations of covenants have been identified by Florida courts as existing contracts between the property owner and the entity that operates the community under the governing documents (the association). There is also case law in Florida that addresses whether a change in the statute applies to the community based upon if a particular phrase is included in the governing documents (commonly referred to as Kaufman language).

If the governing documents include  Kaufman language, any changes made by the legislature in a given year will automatically be incorporated into the governing documents and apply to that community.  Conversely, if there is no Kaufman language, only what is referred to as “procedural” changes made by the legislature will apply to that community.  An example of a procedural change would be a change in a notice requirement for elections.  Statutory changes that are “substantive” would not apply in that instance to that community.  An example of a substantive change would be requiring the association to take on all exterior maintenance of the residential dwellings (presuming the documents do not already provide for that obligation).  Without the Kaufman language in the governing documents, this latter statutory change would not apply to that community, as such change would likely be considered unconstitutional.

During the legislative session in 2021, Section 720.306 of the Florida Statutes was amended to add subsection (h), which provides, in pertinent part, that any amendment to a governing document after July 1, 2021 that prohibits or regulates rental agreements applies only to a parcel owner who acquires title to the parcel after the effective date of the amendment or to a parcel owner who consents to the amendment (with specific exceptions relative to short term rentals and limiting rentals to up to 3 times a year).  However, under the analysis discussed above, rental restrictions and the ability to amend governing documents are generally considered substantive vested rights.  As such, this new statute appears to  impair the existing contractual rights of many property owners in homeowner association communities.

The first step in considering whether this new rental restriction change applies to a particular homeowner association community is to check the governing documents for Kaufman language (this also assumes that the documents were not initially created on or after July 1, 2021).  Typically, Kaufman language is not included in original documents by developers of communities, but  many associations have added it by amendment after the developer was no longer involved.  If the Kaufman language is in the documents, the new statutory rental restriction provisions apply.  If, however, there is no Kaufman language, the new rental restriction statute would not be applicable to the community.  In this instance, the membership could still amend the governing documents to prohibit or regulate rentals within the community, which should be enforceable against all current owners, regardless of whether or not they voted in favor of the amendment.

The issue of whether or not this new statutory change regarding rental restrictions violates the Federal and State Constitutions has not been tested in the Florida or Federal courts as of this writing.  Before considering amending the governing document in a homeowner association community to create rental restrictions, it is recommended to consult with the association attorney as to the limitations that may apply.

The age of a CommunityAssociation opting not to fund reserves is coming to an end

The age of a CommunityAssociation opting not to fund reserves is coming to an end

  • Posted: May 30, 2022
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The age of a CommunityAssociation opting not to fund reserves is coming to an end, and some homeowners could be facing a steep rise in assessments. Becker Shareholder Howard Perl surveys the landscape and offers a few suggestions of how to prepare.

After the Surfside tragedy, everyone wanted to know how such a tragedy could happen and what steps could be taken to avoid similar incidents in the future. What caused the collapse? Could it have been avoided? Why were repairs not made? Why did local governments allow repairs to drag on? Why were repairs not made in a timely fashion? Unfortunately, none of these questions can be answered quickly, and proper answers will require years of study and analysis.

The above questions, and attempts to enact legislative reform to address some of these questions, were a hot topic for the Florida legislature this year. Several counties and the Florida Bar convened task forces in the aftermath of the Surfside tragedy. Primary among the suggested legislative changes for multifamily buildings were periodic engineering inspections, reserve studies, and reserve funding mandates. While all agreed generally in regard to these reforms, at the end of the day, the Senate and House could not agree on the reserve funding issue and, as a result, nothing passed. Currently Florida law can allow for owners to opt to fund less than required reserves, or no reserves. Most legislative proposals included mandatory reserve funding of one type or another. The sticking point was how quickly to implement such mandatory reserves, without the option of owners being able to waive such requirements. Whether to implement immediately, effective in 2022, or over the next three or five years, to allow a gradual implementation, is ultimately what led to nothing being passed. Rather than compromise, which seems to be a forgotten word in Tallahassee these days, legislators could not, or refused, to come to an agreement for the benefit of all condominium and cooperative residents in Florida.

These issues are certain to be re-examined next year. As such, your association should begin recognizing what is most likely coming down the pike and preparing the association and its residents now. Most likely the days are gone when owners will have an opportunity to fully waive reserves. I anticipate mandatory reserve funding of some type will be implemented. Whatever version is implemented, the result will be an increase in annual maintenance assessments. Depending on what is implemented and your association’s current reserve funding situation, some owners may be looking at a significant increase in your 2024 assessments (as the laws I am discussing would be passed in 2023, and most likely effective for the 2024 association budget).

The association should be anticipating and working on these items now. For example, some sort of reserve study requirement is most likely coming. Budget for one now. Get proposals now. Have the study done now. Once mandated by statute, demand will go up, availability will go down, and of course prices will go up. We are seeing exactly that scenario now in regard to structural engineers and 40/50-year recertifications.

In regard to reserve funding, take a good look at your reserve schedules. Get updated estimates of repair costs. Factor in inflation when projecting 10 and 20 year replacement items such as painting, roofing, etc. Any effort to increase your 2023 reserve balances will help lessen any blow of 2024 mandated reserves. Explain these issues to your residents now. Many associations are understandably involved with 40/50-year recertification requirements and other life-safety related issues. Obviously these issues need to be addressed immediately and on an expedited basis. But associations and their members should keep their eye on long-term remedial requirements as well. More oversight; more required inspections; more required repairs; and more required reserves. All of these are good things for 40–50-year-old buildings in a saltwater environment in Florida.

The outcome of the 2022 legislative session once again underscores the inherent problem when all community association ideas are placed in only one omnibus bill. Until our legislators acknowledge this problem and start using stand-alone bills for important proposals, there is always the risk that needed reforms will not pass.

Contact your legislators, tell them you welcome these types of reforms, but they need to be addressed as needed, not all under one take it or leave it omnibus bill. Work with your association leaders on the above discussed items. Don’t be surprised by increased annual assessments, special assessments, and other upcoming expenses. They are coming. Prepare now.

 

Howard Perl is a Shareholder in Becker’s Community Association practice and has been involved in all aspects of community association law, including transactional, collections, mediation, arbitration, construction defects and litigation. He is also Florida Bar Board Certified in Condominium & Planned Development Law.

Florida passed the statewide Condominium Safety Bill in Wake of the Surfside Building Collapse back in June of 2021. This is a major, positive change moving forward in the safety of the condominiums.

Florida passed the statewide Condominium Safety Bill in Wake of the Surfside Building Collapse back in June of 2021. This is a major, positive change moving forward in the safety of the condominiums.

  • Posted: May 27, 2022
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Florida passed the statewide Condominium Safety Bill in Wake of the Surfside Building Collapse back in June of 2021. This is a major, positive change moving forward in the safety of the condominiums.

What does this bill entail?

  • Recertification is now required after 30 years, or 25 years if the building is within 3 miles (5 kilometers) of the coast, and every 10 years thereafter.
  • Condominium associations would be required to maintain sufficient reserves to cover major repairs, and to conduct a study of the reserves every 10 years. Inspection reports would be provided to owners by the condominium association, and if structural repairs are required, owners would be notified and work must start within a year of the report given.
  • If the building’s certificate of occupancy was issued on or before July 1, 1992, the building’s initial milestone inspection must be performed before December 31, 2024.

 

The structural integrity reserve study at a minimum, must include:

  • Roof.
  • Load-bearing walls or other primary structural members.
  • Floor.
  • Foundation.
  • Fireproofing and fire protection systems.
  • Plumbing.
  • Electrical systems.
  • Waterproofing and exterior painting.
  • Windows.
  • Any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000 and the failure to replace or maintain such item negatively affects the items listed in subparagraphs a.-i., as determined by the licensed engineer or architect performing the visual inspection portion of the structural integrity reserve study.

Looking ahead:

The State of Florida Property Management Association (sfpma.com) and the many members are offering their services.  On our members directory Condo & HOA’s all over the state can find the top rated companies to handle their buildings inspections, engineering, fire safety inspections, roofers, painting and waterproofing, plumbers and electricians for all of your Building Maintenance repairs.

On top of these are the Law Firms, that help with making sure your buildings are legaly ready for the changes.

We understand with all of these changes each condo and hoa will need help with funding the reserves into the future, so we did not forget this: Our industry members include the top financial companies, ie: Banks and Loan companies ready to help wth your investments. Act now start saving and growing your reserves, at times you will also need to get  your accounting and bookkeeping with the added help from our collections members to make sure you cn get the funding to perform the many needed repairs.

SFPMA MEMBERS DIRECTORY IN FLORIDA FIND MEMBER COMPANIES FROM TALLAHASSEE TO THE KEYS.

Largest Florida Directory of Companies working with Property Management, Condo and HOA properties.

If you are not listed become a member today!

NEW CONDO AND CO-OP LAWS NOW AWAITING SIGNATURE BY THE GOVERNOR.

NEW CONDO AND CO-OP LAWS NOW AWAITING SIGNATURE BY THE GOVERNOR.

  • Posted: May 27, 2022
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LADIES AND GENTLEMEN: I PRESENT TO YOU THE NEW CONDO AND CO-OP LAWS NOW AWAITING SIGNATURE BY THE GOVERNOR.
IF THEY SOUND SCARY AND IMMENSELY EXPENSIVE, YOU ARE INTERPRETING THEM CORRECTLY. THE FLORIDA LEGISLATURE HAS CHANGED CONDOMINIUM LAW FOREVER. THE COST TO STAY IN YOUR CONDO WILL NEVER BE THE SAME. BUT DON’T BLAME THE FLORIDA LEGISLATURE FROM MAKING LAWS THAT SHOULD HAVE BEEN MADE DECADES AGO BY PREVIOUS FLORIDA LEGISLATURES. THE TRUTH IS…..THIS IS WHAT HAD TO BE DONE. ANYTHING ELSE WOULD HAVE ALLOWED CONDOMINIUM OWNERS TO CONTINUE LIVING A LIE THAT THEIR ASSESSMENTS ARE CHEAP AND AFFORDABLE AND WOULD HAVE ALLOWED THE CAN TO BE KICKED DOWN THE ROAD AGAIN AND PUT LIVES AT RISK..
IRONICALLY, MY REQUEST FOR MANDATORY EDUCATION FOR BOARD MEMBERS WAS NOT INCLUDED IN THE BILL, YET THE BILL GOES OUT OF ITS WAY TO CHARGE DIRECTORS WITH BREACH OF FIDUCIARY DUTY FOR NOT FOLLOWING THESE NEW LAWS THAT MANY WILL NOT BE ABLE TO EVEN UNDERSTAND WITHOUT LEGAL ASSISSTANCE OR EDUCATION.
I DID MY BEST TO PUT THEM IN A FORMAT THAT IS AS SIMPLE TO FOLLOW AS YOU CAN GET, BUT BELIEVE ME YOU WILL NEED TO READ THEM OVER AND OVER TO UNDERSTAND WHAT THE LAW ACTUALLY REQUIRES.

TO GET YOUR COPY CLICK HERE.

Florida passes condominium safety bill in wake of Surfside

Florida passes condominium safety bill in wake of Surfside

  • Posted: May 27, 2022
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A bill has been sent to Florida’s governor that would require statewide recertification of condominiums over three stories tall, in response to the Surfside building collapse that killed 98 people

TALLAHASSEE, Fla. — Florida would require statewide recertification of condominiums over three stories tall under a bill sent Wednesday to Republican Gov. Ron DeSantis by lawmakers, their legislation a response to the Surfside building collapse that killed 98 people.

The House unanimously passed the bill during a special session originally called to address skyrocketing property insurance rates. The condominium safety bill was added to the agenda Tuesday after an agreement was reached between the House and Senate.

Recertification would be required after 30 years, or 25 years if the building is within 3 miles (5 kilometers) of the coast, and every 10 years thereafter. The Champlain Towers South was 40 years old and was going through the 40-year-recertification process required by Miami-Dade County when it collapsed last June.

At the time, Miami-Dade and Broward counties were the only two of the state’s 67 that had condominium recertification programs.

“We have actually made positive change knowing that condominiums will be safer moving forward,” said Republican Rep. Daniel Perez.

The bill would require that condominium associations have sufficient reserves to pay for major repairs and conduct a study of the reserves every decade. It would also require condominium associations to provide inspection reports to owners, and if structural repairs are needed, work must begin within a year of the report.

Similar legislation failed during the regular session that ended in March.

The condominium measure was attached to a bill that would forbid insurers from automatically denying coverage because of a roof’s age if the roof is less than 15 years old. Homeowners with roofs 15 years or older would be allowed to get an inspection before insurers deny them coverage.

While some Democratic lawmakers complained that the special session on insurance didn’t go far enough to help relieve homeowners, they did praise the addition of the condominium safety legislation.

“This bill makes this trip worth it, at least for me,” said Democratic Rep. Michael Grieco, whose district borders Surfside. “I know folks who lost people in that building.”

Recertification would be required after 30 years — or 25 years if the building is within three miles of the coast — and every 10 years thereafter.

The House sent the bill to Republican Gov. Ron DeSantis on Wednesday.

The House unanimously passed the legislation during a special session on skyrocketing property insurance rates.

Recertification would be required after 30 years — or 25 years if the building is within three miles of the coast — and every 10 years thereafter.

Nearly a year after the catastrophic collapse of Champlain Towers South in Surfside, Florida lawmakers on Wednesday gave final approval to legislation that will require condominium association boards to set aside money in reserves to cover future repairs starting in 2025. Current law allows them to waive the requirement.

“They are allowed to do that, and most of them are doing that today. They’re doing that because they are kicking the can down the road and not wanting the cost,” said state Rep. Danny Perez, R-Miami. “So moving forward, the structural integrity of a condominium will be reserved, they will be maintained, and they will be kept up to par so that future condominiums never have to worry about another Surfside taking place.”

The measure, which was approved by the House on a 110-0 vote and now heads to Gov. Ron DeSantis, would also require condo boards to conduct reserve studies every decade to make sure they have the resources to finance needed structural repairs. The proposal would also open up condo board members — many of them volunteers — to lawsuits if they ignore inspection requirements.

At play in Florida will be how to mandate reserves and maintenance to prevent tragedy and prepare associations who will need to make decisions that will likely cost homeowners more money.

“The compliance timeline is a few years away to afford an opportunity to smoothly transition,” the Senate sponsor of the bill, Sen. Jennifer Bradley, R-Fleming Island, said. “Additionally, the Legislature will remain engaged as condos and associations work to implement these changes.”

Bradley said she knows the changes to the state’s condo law will be a disruption to the status quo for many condos, but she says, “the safety of Floridians must come first.”

‘First-of-its-kind’ inspection requirements

“The creation of a first-of-its-kind statewide system of milestone inspections for our aging condos and providing transparency and disclosure to local officials, unit owners, and renters are significant measures that will save lives,” Bradley said.

There would be two phases to inspections. If a visual inspection by a licensed architect or engineer authorized to practice in Florida reveals no signs of substantial structural deterioration, no further action is necessary until the next required inspection. If structural deterioration is detected, a second phase of testing is required to determine whether the building is structurally sound.

The changes to the state’s condo laws emerged on Tuesday afternoon during a special session that Gov. Ron DeSantis called to address Florida’s failing property insurance market. The deal came after months of negotiations between lawmakers.

On Wednesday, Perez said the reserves provision was “the most important” part of the bill. House Speaker Chris Sprowls, R-Palm Harbor, thanked him for standing his ground, telling him that “people in the state of Florida are safer because of your efforts.”

 

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