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Find Blog Articles for Florida’s Condo, HOA and the Management Industry.
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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: Lake Management Articles, Management News
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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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Neglecting to stay on top of water quality issues may require reactive management approaches like herbicides and algaecides. Though these tools are effective, they are only treating the symptom of a bigger issue…
Proactive, natural solutions like aeration or beneficial buffers can help balance water quality, giving you the beautiful, clean water you deserve to enjoy.
Written by Industry Expert Gavin Ferris, Ecologist
I frequently use herbicides and algaecides in my line of work. Having attended college and graduate school to be an Ecologist, it isn’t something I thought I would do very often, but with the frequency of environmental problems that involve invasive flora, nuisance aquatic weeds and potentially-toxic algae, EPA-registered herbicides and algaecides are an invaluable tool. There are, however, times when their use is impractical, imprudent, illegal or impossible. Maybe the HOA or property manager prefers that herbicides not be applied to nearby waters. Perhaps the regulatory bodies in a given area aren’t permitting the use of certain products. Whatever the reason, sometimes this option just isn’t on the table. But how do we effectively manage algae and aquatic weeds without herbicides and algaecides?
I employ a simple concept that I call the algae triangle, though it works for all forms of vegetation.If you had the same fire safety lessons in elementary school, you may remember the Fire Triangle, which is based on the idea that three elements are necessary for fire: fuel, oxygen and heat. If you have enough of all three, you’ll ignite a fire. Eliminate any corner of the triangle, and the fire goes out. Similarly, if you have water, sunlight and nutrients, you’ll likely develop some form of algae or vegetation. If the triangle becomes too imbalanced, the resulting plant species can become a nuisance.
Obviously, in the lake management and pond maintenance field, we aren’t removing water from the equation, so establishing balance between each factor is the focus. Putting this concept into practice means understanding how sunlight and nutrients affect the ecology of the waterbody in question. Communities have several natural options to help mitigate against algae and aquatic weed growth, including limiting sunlight, improving water circulation and reducing excess nutrients.
If a stormwater pond receives full sunlight during the growing season, this directly impacts plants and algae by increasing water temperatures and providing the light necessary for photosynthesis. To prevent sunlight from penetrating the water column and stimulating the growth of deep submersed plants and benthic algae, water levels can be increased. Dredging is an effective strategy to increase the depth of a lake or pond, however, it is often the costliest project a community will ever face. Instead, proactive hydro-raking can help maintain existing water depths and prolong the need for dredging by removing unconsolidated muck and organic debris from the bottom of a lake or stormwater pond. Likewise, blue or black pond dye can be applied to reflect sunlight. Pond dye can enhance the aesthetics of a waterbody while simultaneously absorbing sunlight before it can penetrate the waterbody and fuel excessive plant growth.
In addition to thriving in water that receives lots of sunlight, algae and nuisance weeds also flourish in stratified waterbodies. A stagnant, sun-warmed layer floating on top of colder, deeper water can serve as a perfect habitat for undesirable species. Circulation with a diffused aeration system breaks this stratification and allows the water to mix more evenly, resulting in more consistent temperatures and less warming in the sunlit portions of the water. Aeration is also effective at improving the health of an aquatic ecosystem in a number of other ways, such as preventing oxygen depletion and fish kills, improving beneficial bacteria levels, and preventing the release of excess nutrients from the sediment. This brings us to the real meat and potatoes of preventative maintenance: nutrient management.
Phosphorus is the most important nutrient contributing to excess vegetation in lakes and stormwater ponds, and it can enter the water column in runoff containing lawn fertilizers, grass clippings, pet droppings, and waste from faulty septic systems. A number of nutrient reduction strategies should be considered if water quality tests reveal nutrient levels are too high. A professional lake manager can apply beneficial bacteria to the waterbody to utilize nutrients that would otherwise be available for plant and algae growth. Water quality can also be amended by using products that bind with phosphorus to keep it from becoming fuel for nuisance plants. Additionally, strategically planting desirable buffer vegetation around the shore of the waterbody can help to intercept phosphorus before it enters the water and is absorbed by unwanted vegetation. Your lake manager can help identify buffer plants that are native to your region.
When it comes to quickly and effectively managing nuisance aquatic weeds and algae, EPA-registered herbicides and algaecides can be very useful, and in many instances, they are the safest and most practical option available. Nonetheless, natural and proactive pond maintenance techniques can be tremendously effective at improving the health and appearance of almost any community waterbody before a problem occurs, which is why it’s important for homeowners associations and property managers to consider sustainable and holistic plant management methods whenever possible.
SOLitude Lake Management
Josh McGarry
Business Development Consultant
SOLitude Lake Management
Info@solitudelake.com
(888)480-5253
Tags: Lake Management Articles, Management News
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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.
