Q: I’ve heard about a brand-new law which addresses building safety for certain types of condominiums. What does the new law say and what impacts will it have? B.Z.
A: During the Florida Legislature’s Regular Session, held earlier this year, there were several bills filed which were intended to address the Surfside tragedy. None of these bills passed during the Regular Session.
In a Special Session held a few weeks ago, the Legislature decided to revisit the “Surfside legislation” for condominium associations. A Bill was adopted unanimously by the Senate on May 24, 2022 and by the House on May 25, and signed into law by the Governor on May 26. Here are some of the highlights of this 88-page Bill (SB 4D).
If a condominium building is 3 or more stories in height, a “milestone inspection” is required and must be performed by a licensed architect or engineer. The inspection must be performed within 30 years from the date the Certificate of Occupancy (“CO”) was issued for the building. However, if the building is within 3 miles of the coastline, the milestone inspection must be performed within 25 years of the CO date.
The law is being phased in by requiring buildings that received a CO before July 1, 1992, to complete the first milestone inspection by December 31, 2024. The new law requires the “local enforcement agency,” presumably the local building department, to send notice to associations of the milestone inspection requirement. The association then has 180 days to perform a “Phase 1” inspection. It is unclear if the local building departments can accelerate the December 31, 2024 deadline.
The Phase 1 inspection requires the architect or engineer to perform a visual inspection of the property and undertake a qualitative assessment of the building’s condition. If the Phase 1 inspection reveals no signs of structural deterioration, then a “Phase 2” inspection is not required. A Phase 2 inspection is required if structural deterioration is noted. The Phase 2 inspection may require destructive testing, at the inspector’s direction.
The engineer or architect performing either a Phase 1 or Phase 2 inspection must prepare a written inspection report. The report must be sealed and have a separate summary pointing out its material findings. The report must be given to the association and the local building official with jurisdiction over the building.
The new statute lists the minimum categories which must be addressed in the milestone inspection report, by reference to the new statutory requirement for a “structural reserve study,” discussed below. The association must distribute the milestone inspection report to all unit owners, regardless of its findings. Delivery must be by mail, personal delivery, or e-mail to those who have consented to receive electronic notice. The association must also post a copy of the inspection summary in a conspicuous place on the property. The association must post the full report on its website, if the association is legally required to have a website.
The new law gives local building officials discretion to prescribe timelines and penalties for non-compliance. County commissions may adopt ordinances establishing timelines for necessary repairs identified in a report, and such repairs must be commenced within 365 days after receiving the report.
The definition section of the statute adds the term “structural integrity reserve study” to the definitions included in the regulation of condominiums. The law requires that these reserve studies must be maintained as part of the official records of the association for 15 years, the same as for the milestone inspections discussed above. Renters are entitled to inspect the foregoing reports.
Another significant change to the law from an operational perspective is the budget adoption process, particularly regarding reserves. The reserve schedule will now be required to include any items identified in a newly required “structural integrity reserve study.” For buildings of 3 stories or more, the initial structural integrity reserve study must be completed by December 31, 2024 and must be performed at least every 10 years thereafter.
Effective December 31, 2024, an association may not vote to waive or reduce reserves for the items listed in the structural integrity reserve study.
The structural integrity reserve study must address: roofs; load bearing walls or other primary structural members; floors; foundations; fireproofing and fire protection systems; plumbing; electrical systems; waterproofing and exterior paint; windows; any other item which exceeds $10,000.00 in deferred maintenance cost and was identified by the engineer or architect performing the inspection portion of the structural integrity reserve study.
Failure to complete the milestone inspections and reserve study in a timely and proper manner “is a breach of an officer’s and director’s fiduciary relationship to the unit owners.” The Division of Florida Condominiums, Timeshares and Mobile Homes is given rulemaking authority related to milestone inspections and structural integrity reserve studies and is required to obtain various information from associations before the end of this year and must compile a searchable list on its website related to the information it receives.
The law became effective on May 26, 2022 and has created many questions regarding how it will be implemented and enforced. While there may or may not be “glitch legislation” or other legislative change efforts, associations cannot and should not count on the law being changed in any material fashion. There may or may not be some effort to ease up the reserve funding requirements due to market sensitivity and affordability issues, but that is far from certain. Condominium associations are encouraged to reach out to their attorney and engineering consultants and begin taking the necessary steps required to comply with these impactful changes to the law.
David G. Muller is a Board-Certified Attorney in Condominium and Planned Development Law with Becker & Poliakoff, P.A. in Naples. Send questions to Attorney Muller by e-mail to dmuller@beckerlawyers.com.
