Florida lawmakers took a big step earlier this year toward safeguarding the health and safety of residents living in condominiums and cooperatives statewide when it passed hallmark bipartisan legislation codifying inspection and reserve requirements for the approximately 40,000 common interest communities in the Sunshine State.
The law, which passed unanimously during a special session of the Florida legislature in May, still has a long way to go before final implementation in 2025. Confusion remains over the legislation's specifics, implementation, and costs. Clarification and explanations are expected when the legislature meets in March. Even with unanswered questions, most industry observers acknowledge the legislation is needed and long overdue.
The law is a direct response to the tragic partial collapse in June 2021 of the Champlain Towers South condominium in Surfside, Fla. Nearly 100 people died in what's considered one of the worst building disasters in U.S. history. Although an investigation into the catastrophe is ongoing, state legislators faced pressure to act quickly to address inconsistencies and loopholes within a system that allowed community association boards driven by budgetary fears to defer necessary maintenance and repairs.
Observers believe the law represents a positive first step to enhance safety, improve community association management, and protect homeowners and their investments. The law, which includes a framework largely based on recommendations in CAI's Condominium Safety Public Policy Report, also has national implications as several states consider similar bills to codify building safety measures. The federal government is getting on the bandwagon, too. Earlier this year, two Florida lawmakers introduced legislation in Congress to assist communities and their homeowners seeking to finance special assessments.
On a fundamental level, the new condo safety law establishes the parameters of sound building management. Travis Moore, CAI's Florida lobbyist who worked closely on the development of the law, believes it will make it impossible for community associations to ignore building maintenance in the future and sets up a methodical and practical system to ensure proper maintenance is completed. Moore is confident state lawmakers will continue to work on the statutory language to find the right balance to protect lives and property without displacing residents.
INSPECTING THE LEGISLATION
Under SB 4D, condominium and cooperative associations must commission milestone inspections of buildings at 25 years of age with more than three stories and within 3 miles of the coastline every 10 years. The inspection is broken into two parts. The first is a visual inspection of the property. If problems, are found, another more comprehensive written inspection will be necessary. Buildings under three stories within 3 miles of the coast are exempt from the law. Milestone inspections must be performed by a licensed engineer or architect.
It also mandates community associations commission a reserve study titled a “structural integrity reserve study" that will help associations budget for and allocate funds needed for replacement and major repairs of structural components. (See “Florida's Landmark Law" below.). Observers believe the Florida law will boost transparency, increase safety, and ensure adequate financing is available for building repairs or replacements. They admit the law is comprehensive.
The new Florida law will help boards to take decisive action on safety and maintenance.
While some Florida counties such as Miami-Dade and Broward previously required building inspections, the law for the first time specifically defines requirements for building inspections and structural integrity reserve studies statewide.
On top of the new inspection and reserve requirements, there are several deadlines community associations must be aware of in conjunction with the new law. The first—and easiest to comply with—is coming up on Jan. 1, 2023, when Florida condominiums and cooperative must report baseline building information to the state Division of Florida Condominiums, Timeshares, and Mobile Homes. Initial building inspections and structural integrity reserve studies must be completed by Dec. 31, 2024.
Even though many professionals in the community associations industry agree refinements to the law are needed before it can serve its intended purpose, they advise associations to keep a clear head and not panic.
The law “is not a punishment," says Lisa Magill, an attorney with Kaye, Bender, Rembaum in Pompano Beach, Fla., and a fellow in CAI's College of Community Association Lawyers.
“Unlike your car, condominiums aren't accompanied by maintenance manuals," says Magill, who served on one of the three CAI volunteer working groups that developed the Condominium Safety Public Policy Report. “Volunteer board members typically want to do what is best for the association but need proper guidance, education, and time to engage in long-term planning and make informed decisions."
From her perspective, Magill worries there aren't enough qualified engineers and architects available to do the work within the current timeframe. “An association has no control over contractor availability, and contractors themselves rely upon (others such as) suppliers, permit authorities, and code inspectors" to get the job done. She believes the engineering and reserve study components need to be more clearly defined to prevent unnecessary expense and burdens to associations.
POSITIVE INTENT
Charles Schumacher, CMCA, AMS, a community manager at Seapoint at Naples Cay in Naples, Fla., thinks the legislature did a great job. From a management perspective, Schumacher thinks the new law is “phenomenal," and outlines a plan that will provide structure and adequate funding making it easier for managers to maintain safe buildings.
“This law is not meant to be burdensome to the manager industry," Schumacher says. “It's meant to solidify what we already do." He believes a large majority of managers are already implementing best practices to protect owners and residents in condominiums and cooperatives statewide.
“There's no reason not to comply," Schumacher says. He believes it's better to have these protections in place and not wait for tragedies to act. He hopes Florida can be a model for the rest of the country. Schumacher recommends associations begin conversations now with attorneys, reserve specialists, engineers, and their business partners to develop a plan and get on the schedule as it may take as many as 18 months to complete the required inspections and studies. Beyond the nuts and bolts, the legislation signals a primary—and healthy— change in attitude and mindset for common interest communities when it comes to building maintenance.
Matt Kuisle, RS, a licensed professional engineer with Reserve Advisors in Tampa, Fla., thinks the new law presents an opportunity to improve communities and urged associations to take the long view and not think of the requirements as “just an extra cost."
Aldo Gonzalez, RS, a licensed engineer at Community Reserves in Pembroke Pines, Fla., welcomes the new law's emphasis on collaboration, improving communication, building trust, and forming partnerships among all groups involved. Gonzales thinks the legislation will provide valuable financial information needed to maintain buildings and urged boards and managers to keep in mind the intent of the law and avoid “knee-jerk" reactions.
Beyond the nuts and bolts, the legislation signals a primary—and healthy—change in attitude and mindset for common interest communities when it comes to building maintenance.
TIMING AND TWEAKS
Even though many observers support the new law, more guidance on provisions such as pooling reserves, windows, foundations, elevators, and air conditioning require further explanation. The timing of the new law also is up for debate. Many are concerned that even at two years away, it's a tall order for associations to line up and complete the necessary inspections and reserve studies. Some are concerned there aren't enough credentialed professionals available in the state to complete the work.
Despite widespread support for the law's intent, the law isn't without its critics. Enforcement measures are still undefined, and some fear the risk of steep fines and exposure to litigation. The most severe penalty would be to condemn the building, forcing residents to lose their homes.
There's also the real possibility that the law will be too expensive and difficult to implement and force some common interest communities to de-convert and sell to developers or investment companies. Jackie Grant, president of the River Bend Condo Association of Brevard in Cocoa Beach, Fla., worries communities will spend a lot of money to comply with the law. She believes more education for homeowners and community associations will be necessary to help them better understand the law and how to comply.
Insurance coverage and its affordability are other questions surrounding the new law. Some fear the requirements will press insurers to write exclusions preventing associations from obtaining coverage.
Joel Meskin, CIRMS, an attorney and managing director of community association products with the McGowan Companies in Fairview Park, Ohio, called the law a politically motivated “over-reaction" that will be di cult to comply with and lacks practical enforcement mechanisms. He fears the new law's rigorous requirements will prevent associations from obtaining and affording insurance coverage. Meskin would like to see development of more creative, targeted solutions that provide adequate timing to implement safety measures and funding.
Criticisms and tweaks aside, it's clear the worst thing community managers can do is nothing, observers say.
“Do not ignore the new law," attorney Magill says. “While there may be changes, I strongly discourage clients from kicking the can down the road. Prepare by starting early … even if the buildings are not facing the 2024 deadline. As the deadline approaches, engaging the right professionals will become more and more difficult."
Joni Lucas is editor of CAI's Common Ground™ magazine.