Part Two: New Condo Inspection Bill – Get your questions answered!
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We all know by now the myriad of new safety laws condos that are 3 stories or more are required to follow. They include mandatory fire sprinklers or an engineered life safety system (for buildings 75 feet or higher only), a Phase One Milestone Inspection after 30 years and every ten years thereafter (25 years if the building is on the coast), a likely Phase Two Inspection which will result in required repairs to the structure and of course structural integrity reserve studies performed by an architect or engineer and the mandatory full funding of reserve accounts.
There’s actually more to know.
OFFICIAL RECORDS TO INCLUDE AND BE POSTED ON THE ASSOCIATION’S WEBSITE:
A copy of the inspection reports for the milestone inspections and the structural integrity reserve studies and any other inspection report relating to a structural or life safety inspection of the condominium property. Such record must be maintained by the association for 15 years after receipt of the report.
NO LONGER IS THERE THE ABILITY
TO WAIVE RESERVES OR USE THEM FOR OTHER PURPOSES
It was always ridiculously easy to waive the funding of the reserve account. All it took was a lousy majority of a quorum. Those days are now over and reserve accounts must be fully funded, like it or not.
The same rule finally applies to developers. Before turnover of control of an association by a developer to unit owners other than a developer under 718.301, the developer-controlled association developer may not vote the voting interests allocated to its units to waive the reserves or reduce the funding of the reserves.
You can no longer vote to use reserves set aside for one category to be used to repair another category. Effective December 31, 2024, members of a unit-owner controlled association may not vote to use reserve funds, or any interest accruing thereon, that are reserved for items listed in paragraph (g) for any other purpose other than their intended purpose.
(g) Structural integrity reserve study.
BREACH OF FIDUCIARY DUTY – THIS IS SCARY
(h) Mandatory milestone inspections.—If an association is required to have a milestone inspection performed pursuant to s. 553.899, the association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance with the requirements of s. 553.899. The association is responsible for all costs associated with the inspection. If the officers or directors of an association willfully and knowingly fail to have a milestone inspection performed pursuant to s. 553.899, such failure is a breach of the officers’ and directors’ fiduciary relationship to the unit owners under s. 718.111(1)(a). Again, If you’re an officer or director, this new law should scare you to death. If you fail to do the milestone inspection, you have automatically breached your fiduciary duty. This could potentially result in individual liability against a director should the failure to do the reserve study result in collapse or injury.
Tags: Condo and HOA
Imagine this scenario: you are on the board of directors of your association. The association has repeatedly requested that an owner pressure wash their dirty roof to bring it into compliance with the community standards, but the owner refuses to do so. The association has already sent a number of demand letters and even levied a fine and perhaps a suspension of use rights, too, but the owner still will not comply. What is the association’s next step?
or
Assume that the association’s declaration contains both the permissive “self-help” remedy and the right to seek an injunction from the court that orders the owner to clean their roof or else be in contempt of court. Thus, it would appear the association has a decision to make: (i) go to court to seek the injunction; or (ii) enter onto the owner’s property, pressure clean the roof, and assess the costs to the owner. Not so fast! Recent case law from Florida’s Second District Court of Appeal affirmed a complication to what should be a simple decision, discussed in greater detail below.
In two cases decided 10 years apart, Florida’s Second District Court of Appeal decided that an association did not have the right to seek an injunction to compel an owner to comply with the declaration if the declaration provided the association the authority to engage in “self-help” to remedy the violation. Prior to a discussion of the cases, a brief explanation of legal and equitable remedies is necessary.
There is a general legal principle that, if a claimant has a remedy at law (e.g., the ability to recover money damages under a contract), then it lacks the legal basis to pursue a remedy in equity (e.g., an action for injunctive relief). In the association context, a legal remedy would be to exercise the “self-help” authority granted in the association’s declaration. An equitable remedy would be to bring an action seeking an injunction to compel an owner to take action to comply with the declaration (e.g., compelling the owner to pressure wash their roof). A court will typically only award an equitable remedy when a legal remedy (such as “self-help”) is unavailable, insufficient, or inadequate.
This distinction is first illustrated in Alorda v. Sutton Place Homeowners Association, Inc., 82 So. 3d 1077 (Fla. 2d DCA 2012). In Alorda, the owners failed to provide the association with proof of insurance coverage as required by the declaration. The association sent multiple demand letters to the owners, but they failed to comply. The declaration provided, in pertinent part, that “[t]he owner shall furnish proof of such insurance to the Association at the time of purchase of a lot and shall furnish proof of renewal of such insurance on each anniversary date. If the owner fails to provide such insurance the Association may obtain such insurance and shall assess the owner for the cost of the same in accordance with the provisions of this Declaration” (emphasis added). In accordance with the foregoing, the association had the option to purchase the insurance on behalf of the owners and assess them for the costs of same.
However, the association chose instead to file a complaint against the owners seeking the equitable remedy of injunctive relief, asking the court to enter a permanent mandatory injunction requiring the owners to obtain the required insurance coverage. The owners then filed a motion to dismiss the suit arguing that even though they had violated a provision of the declaration, the equitable remedy of an injunction is not available because the association had an adequate remedy at law. In other words, the owners argued that, because the association could have, pursuant to the declaration, undertaken the ”self-help” option by purchasing the required insurance and assessing it against the owners, they had an available legal remedy and, therefore, the equitable remedy sought (a mandatory injunction) was not available to the association. The court, citing to a different case, Shaw v. Tampa Electric Company, 949 So.2d 1006 (Fla. 2d DCA 2007), explained that a mandatory injunction is proper only where a clear right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy at law. As the association had an adequate remedy at law (the authority to purchase the insurance on behalf of the owners), the third requirement was not met. Therefore, the court held that the association failed to state a cause of action and dismissed the case. (This case might be decided differently today as it appears the insurance marketplace will not permit an association to purchase insurance for a unit that it does not own, so the legal remedy presumed available to the association would be inadequate).
Similarly, in the recent case of Mauriello v. The Property Owners Association of Lake Parker Estates, Inc., Case No. 2D21-500 (Fla. 2d DCA 2022), Florida’s Second District Court of Appeal considered the award of attorneys’ fees after the dismissal of the association’s action for an injunction. Ultimately, the court held that the owners were the prevailing party as the association could not seek an injunction because the association had an adequate remedy at law. In Mauriello, the owners failed to maintain their lawn and landscaping in good condition as required by the declaration. As such, the association filed a complaint seeking a mandatory injunction ordering the owners to maintain the lawn and landscaping in a “neat condition.” The association’s declaration contained similar language to the declaration at issue in Alorda. The declaration provided that, if an owner failed to perform any maintenance required by the declaration, the association, after written notice, “may have such work performed, and the cost thereof shall be specifically assessed against such Lot which assessment shall be secured by the lien set forth in Section 9 of this Article VI” (emphasis added). In other words, the association had the permissive “self-help” authority pursuant to the declaration.
The facts of this case were complicated by the sale of the home in the middle of the suit. The new owners voluntarily brought the home into compliance with the declaration, and the case became moot. However, the parties continued to fight over who was entitled to prevailing party attorneys’ fees. The association argued it was entitled to prevailing party attorneys’ fees because the voluntary compliance was only obtained after the association was forced to commence legal action. The owners, citing Alorda, argued that they were entitled to prevailing party attorneys’ fees as the association’s complaint never stated a cause of action in the first place. They argued that the complaint should have been dismissed at the outset because the association sought an equitable remedy (mandatory injunction) when a legal remedy was available to the association (exercise of “self-help” authority).
Florida’s Second District Court of Appeal agreed with the owners that Alorda was controlling. The Court explained that, as in Alorda, “the association’s declaration gave it the option of remedying the alleged violation itself, assessing the owner for the cost, and if the owner failed to pay, placing a lien on the property and foreclosing if it remained unpaid.” As such, the association had an adequate remedy at law and could not seek the equitable remedy of an injunction, which was initially sought by the association. Because the mandatory injunction was not available to the association, the association’s complaint failed to state a proper cause of action and, thus, should have been dismissed by the trial court at the outset. Therefore, the association was not entitled to its sought-after prevailing party attorneys’ fee award, which is otherwise granted if a party comes into compliance after the lawsuit is served.
Sections 718.303 (as to condominiums), 719.303 (as to cooperatives), and 720.305 (as to homeowners associations), Florida Statutes, contain similar language that specifically authorizes the association to bring actions at law or in equity, or both, in the event an owner fails to comply with the governing documents of the association. However, neither the Court in Alorda nor the Court in Mauriello addressed the association’s statutory authority to bring an injunction against an owner who fails to comply with the requirements of the declaration, but rather found that the association must use the “self-help” remedy since it was available to cure the violation.
Notwithstanding the Alorda and Mauriello decisions rendered by Florida’s Second District Court of Appeal, past appellate court decisions from other appellate jurisdictions in Florida have permitted community associations to pursue claims for injunctive relief against violating owners so long as a violation of the restrictive covenant is alleged in the complaint. As such, the Alorda and Mauriello cases appear to be departures from the established principle. Additionally, as both decisions came from Florida’s Second District Court of Appeal, the decisions are certainly binding on those associations within the jurisdiction of the Second District, but there has been no indication that other districts will follow suit. However, there is risk that other appellate district courts may be persuaded by the holdings of Alorda and Mauriello.
As such, if your association’s declaration contains a “self-help” provision, and your association chooses to seek an injunction against an owner rather than pursue “self-help,” the board should definitely discuss the issue in greater detail with the association’s legal counsel prior to proceeding.
Find out more about KBR Legal – If your community is looking for representation give us a call.
Kaye Bender Rembaum is a full service commercial law firm devoted to the representation of community associations throughout Florida. Under the direction of attorneys Robert L. Kaye, Esq., Michael S. Bender, Esq., and Jeffrey A. Rembaum, Esq. Kaye Bender Rembaum is 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. Most of our attorneys are Board Certified in Condominium and Planned Development Law.
Tags: Law and Legal, Management News, SFPMA Articles
By Eric Glazer, Esq.
In a word — YES. Are all these new laws really necessary? In a word –YES. This is all happening due to a complete lack of foresight and planning by The Florida Legislature. Mandatory Reserves and Mandatory Inspections should always have been the law. I urged The Florida Legislature in May of 2018 to make reserves mandatory. Instead they waited for a building to collapse and for 98 people to die before making these common sense laws. Of course a building should require an inspection after 25 or 30 years. Of course a building should be required to make necessary repairs to prevent a potential collapse. Of course a building should be required to put away money each month for future repairs. Of course that amount should be determined by a professional architect or engineer and not an unqualified board member who has a financial interest in the outcome of the reserve study. These laws should have been required thirty years ago, as building started to boom. Instead however, The Florida Legislature always caved to the developer lobby in order to keep the cost of living in a condominium artificially cheap, and the sale of units flowing. Now, because these laws were not in place thirty years ago, current condominium owners have a lot of catching up to do financially to pay for the sins of the past.
The days of a couple or a widower from up north retiring to a high rise condominium in Florida if their sole income is social security are done and over. That cannot happen anymore. They need to look for a condominium less than three stories in height that has some reserves put away.
If your condominium is at least 30 years old and is 6 stories or higher, has no fire sprinklers or Engineered life safety system, has not yet undergone a Mandatory Phase One and Phase Two Inspection, has not made the repairs required by those inspections and has no reserves in the bank, you are now forced to either sell your condominium unit immediately or pay massive special assessments that you may not be able to afford, or even come close to affording it.
On the flip side, if your condominium is at least 30 years old and is 6 stories or higher, and already has fire sprinklers or an Engineered life safety system, has already undergone a Mandatory Phase One and Phase Two Inspection, has already made the necessary repairs, and is fully funding reserves, you have little to nothing to worry about. Your monthly assessments should remain where they are, give or take the increases in insurance that are simply astronomical.
Developers are waiting to pounce. They are focusing their attention on those condominium at least 30 years old and are 6 stories or higher, but has no fire sprinklers or Engineered life safety system, has not yet undergone a Mandatory Phase One and Phase Two Inspection, and has not made the repairs that will be required by those inspections and has no reserves in the bank. Developers will be approaching the Boards of these condominiums with offers to buy everyone’s unit for a certain price. You will either consent to selling or have to pay the costs for all these inspections, repairs and funding of reserves. For many there will be no choice at all. They will have to sell and somehow find housing elsewhere.
Like everything else, the poor people or even the average workers who had saved up enough money for a down payment on their condo and proudly purchased their unit, they will get hit the hardest. In reality, in upper class buildings, they were either putting reserve money aside all along, or worse comes to worse they can stroke a check for these increased costs. They’re OK.
This will take years to sort out. Some condos simply won’t be able to comply with the new laws and the owners will sell out to a developer. Some condominiums will opt not to sell and pass massive special assessments and/or borrow the money from a bank. Either way their expenses are going up. Many associations will be foreclosing on many of their owners who can’t afford these special assessments. I can tell you that even before these massive changes go into effect, foreclosures are already on the rise, simply due to nearly $6.00 per gallon of gasoline and out of control food prices. These new laws will start what I believe will be a tremendous increase in foreclosures, perhaps as bad as 2007 and 2008. Yet, all of it is necessary. You can’t allow buildings not to get inspected, you can’t allow building not to get fixed, you can’t allow buildings not to have fire safety measures and you can’t allow buildings to deliberately waive a requirement to put funds away each month for future structural repairs.
The Band Aid was ripped off in one shot. As a result, Florida condominiums and their owners will have some tough financial times ahead. There will definitely be gentrification in some neighborhoods. The look, feel and face of Florida will change going forward. If only these measures were passed when these buildings were being built so people would not be forced out of their homes today. There simply was no foresight and now the change won’t be smooth and gradual, but will be difficult and immediate. And yet, there’s no other way to go. A collapse like Champlain Towers can never happen again.
Tags: Condo and HOA Law
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.
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When The Florida Legislature went home after the 2021 Legislative Session without passing a single change to Florida condominium safety laws, it was a slap in the face to the victims and their families. This firm was relentless and refused to give up.
We wrote the Governor’s Office demanding that this be corrected, we kept blasting Florida’s legislators on Television and of course on the Condo Craze and HOAs radio and YouTube show. We kept fighting the fight.
After all, we warned every member of The Florida Legislature in May of 2018, of the pending disaster that faces The State of Florida if mandatory reserves are not passed. It took the loss of 98 lives to get the laws changed, but this firm is so proud to say after massive public pressure, The Florida Legislature passed and The Governor signed the most dramatic changes to Florida Condominium Safety Laws ever passed in the history of the state.
This issue is devoted to teach all of you the massive changes to the laws that each and every condominium unit owner and especially, every single board must immediately learn and have respect for. No doubt that these laws will make it financially more difficult for many to purchase and many to even remain living in their condominium unit. Nonetheless, The Florida Legislature did the right thing and put lives and safety ahead of finances.
The face of Florida condominiums have changed forever. If you have questions or concerns, call us.
OUR BOARD CERTIFICATION COURSE IS BACK!!!
The law now provides that within 90 days of getting elected to a condominium or homeowner’s association Board
of Directors, you must get certified or you are removed from the Board. One way to get certified is by attending a
state approved course. Attorney Eric Glazer has designed a course that was approved by The DBPR, which allows
him to certify attendees as eligible to serve on a Florida condominium or HOA Board of Directors. See the list
below of classes you may register for. Eric is proud to have certified over 20,000 directors throughout the state.
Other Board Certification Classes –for Condos and HOAs
AUGUST 25TH – ON-LINE BY ZOOM — 6:00 P.M.
As to the Following, All Starting Times are 9:00 a.m. at the L&L Condo and HOA Expo:
October 4th – Palm Beach, The Palm Beach Convention Center
October 11th – Broward at The Signature Grand
October 12th –Brandenton, at The Bradenton Convention Center
October 17th – Orlando at The Orange County Convention Center
October 27th – Tampa at the Tampa Convention Center
Eric Glazer: Eric is a graduate of NYU and The University of Miami School of Law in 1992. Our firm is proud to announce that as of June 1st, 2018 Eric was part of the first ever group of attorneys in the state to
become Board Certified in Condominium and Planned Development Law. Out of over 100,000 attorneys in the state, approximately 195 are Board Certified in this area. Eric was also certified by The Florida Supreme Court as a Circuit Court Mediator in 2007. He is also a member of the New York, Washington D.C. and Tennessee Bar. Eric is also a Florida Supreme Court Certified Arbitrator.
Richard Sachs has been practicing since 1994. He has been certified by the Florida Supreme Court as a Circuit Court mediator since 2002. He is also a Florida Supreme Court Qualified Arbitrator. Richard received the distinguished “AV” rating from Martindale-Hubbell in 2000 and has maintained that rating throughout his career. He is well respected by
his peers as demonstrated by his being named to the list of Florida Super Lawyers and the list of the South Florida Legal Guide’s Top Lawyers, both since 2011.
Pennie Mays is Board Certified in Construction Law by The Florida
Bar. Pennie was admitted to The Florida Bar in 2005. She has spent her
16 year career representing associations against developers and
contractors and other commercial litigation.
Paul Kim is practicing since 2007. He devotes much of his time to
litigation in state and federal court and arbitration including but not
limited to service and emotional support animal issues, disability and
discrimination law, rule compliance and complex bankruptcy issues.
Our firm prides itself on our ability to represent associations
and their owners on all legal matters that come their way.
Whether it’s representation in the courtroom, in administrative hearings, attending your meetings, answering your calls, speaking with you on the radio or teaching you at our seminars, it is always an honor and a pleasure to serve
you.
Eric M. Glazer, Esquire
Tags: Condo and HOA
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.
Tags: Condo and HOA Law, Inspection Articles, Management News
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Tags: Education & Licensing
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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: |
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…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. |
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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. |
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BUDGETING & RESERVES 1 hour class 1 IFM Credit or 1 ELE Credit Provider #0000811 / Course #9630156 When creating a financial plan for your association there are many things to consider. Join Becker attorneys as they discuss the steps it takes to create and maintain a successful budget and reserve plan. Topics we will cover include: Budget Planning Components of a Budget Calculation of Assessments Adopting The Budget Reserve Requirements & Use of Funds Straight Line Reserve Calculations
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TAKE A BITE OUT OF FRAUDULENT ASSISTANCE ANIMAL REQUESTS Provider #0000811 | Course #9630287 | 1 ELE Credit Participants will learn about the Fair Housing laws on the state, federal and local level that impact community operations and actions with respect to requests to maintain emotional support animals on the property despite pet or animal restrictions. Some topics to be discussed: Fair Housing Act and Disability Accommodations Evolving Law of “Prescription Pets” Establishing a Handicap Competing Definition of Service Animal Under ADAAA and FHAA What to do When the Disability is Not Obvious What a Disabled Person Needs to Provide in Order to Own a Service Animal Innate Qualities of Service Animal Failing to Make Reasonable Accommodations and Modifications What to do when “Skeptical” Information is Provided Damages and Penalties for Discrimination This course is approved by Community Association Managers International Certification Board (CAMICB.org) to fulfill continuing education requirements for the CMCA® certification
Condo Craze & HOA’s” (RADIO SHOW) on 850AM/WFTL & YouTube with Eric Glazer Sundays 11am-12noon. Eric M. Glazer Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2 decades and is the owner of Glazer and Sachs, P.A. a five attorney law firm with offices in Fort Lauderdale and Orlando. Eric is Board certified by The Florida Bar in Condominium and Planned Development Law and the first attorney in the State that designed a course that certifies both condominium and HOA residents as eligible to serve on a Board of Directors and has now certified more than 20,000 Floridians all across the state. Mr. Glazer is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members. View the show details
CONDO SOLUTIONS (RADIO SHOW) on WSTU 1450 am Mondays (9 am – 10 am) by Peter Mollengarden, Esq of KBR Legal Peter Mollengarden, Esq. on ‘Condo Solutions’ Live on Mondays, from 9:05am to 10:00am. Join Kaye Bender Rembaum attorney Peter C. Mollengarden and CPA Mark Brechbill every Monday and call in live with your community association-related questions. The number is 772-220-9788. This is available locally in Martin and St. Lucie counties on 1450 AM, or online at WSTU1450.com
Legislative Update Webinar featuring Michael Bender Join Campbell Property Management and Attorney Michael Bender from Kaye Bender Rembaum for this Legal Update Webinar. 12:00 pm-1:15 pm 06/21/2022 Campbell Property Management Join Campbell Property Management and Attorney Michael Bender from Kaye Bender Rembaum for this Legal Update Webinar. RSVP HERE This webinar does not include CEU credits. Be sure to ask your question about legal updates when you register. We will do our best to answer as many questions as possible. Board Members who attend will learn about law changes that may impact their community associations in Florida.
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Condo Craze & HOA’s” (RADIO SHOW) on 850AM/WFTL & YouTube with Eric Glazer Sundays 11am-12noon. Eric M. Glazer Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2 decades and is the owner of Glazer and Sachs, P.A. a five attorney law firm with offices in Fort Lauderdale and Orlando. Eric is Board certified by The Florida Bar in Condominium and Planned Development Law and the first attorney in the State that designed a course that certifies both condominium and HOA residents as eligible to serve on a Board of Directors and has now certified more than 20,000 Floridians all across the state. Mr. Glazer is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members. View the show details
CONDO SOLUTIONS (RADIO SHOW) on WSTU 1450 am Mondays (9 am – 10 am) by Peter Mollengarden, Esq of KBR Legal Peter Mollengarden, Esq. on ‘Condo Solutions’ Live on Mondays, from 9:05am to 10:00am. Join Kaye Bender Rembaum attorney Peter C. Mollengarden and CPA Mark Brechbill every Monday and call in live with your community association-related questions. The number is 772-220-9788. This is available locally in Martin and St. Lucie counties on 1450 AM, or online at WSTU1450.com
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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.