New Legislation

March 20, 2023

Florida Legislature Considering Bills Proposing Changes to Condo Safety Reforms, Construction Defect Lawsuits

by Roberto C. Blanch

Roberto C. Blanch

As the 2023 Florida legislative session gets underway, there are several bills impacting associations and real estate that our firm’s South Florida community association attorneys will be keeping a close eye on and discussing in our blog.

Senate Bill 154 and House Bill 1395

Perhaps the most important of these are Senate Bill 154 and House Bill 1395, which deal with issues such as inspections and condominium association financial reserves that were addressed in the condo safety reform law that was passed last May with the adoption of Senate Bill 4D during a special legislative session. Under the new law, inspections are required for buildings that have been occupied for 30 years — or 25 years if they are within three miles of a coastline. After these initial inspections, the buildings will have to go through the process again every 10 years.

If adopted, the new bills could result in changes to the time by which buildings, including those within three miles of a coastline, will have to be inspected. The two bills include different timeframes by which the initial milestone inspection may have to be performed (e.g., SB 154 triggering all such inspections at 30 years with discretion for local officials and authorities having jurisdiction to compel some at 25 years depending on “local circumstances, including environmental conditions such proximity to salt water”; or HB 1395 requiring the initial inspections at 25 years for all buildings regardless of proximity to salt water).

January 1, 2023

Miami Herald Real Estate Column by Gary Mars: “Industry Association Offers Lawmakers, Advocates Legislative Priorities for 2023”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column was authored by partner Gary M. Mars and appears in today’s edition of the newspaper. The article, which is titled “Industry Association Offers Lawmakers, Advocates Legislative Priorities for 2023,” focuses on the 2023 legislative priorities from the Community Associations Institute, which serves as the leading voice for the associations industry. His article reads:

. . . To determine CAI’s priority issues for 2023, its Government & Public Affairs team surveyed nearly 1,000 members including the federal legislative action committee (LAC), Government & Public Affairs Committee, and state LAC representatives. Fifty percent of respondents said they anticipate condominium safety issues in 2023, including those covering reserve studies and funding; as well as building inspections, maintenance and structural integrity.

The organization recommends statutorily mandating reserve studies and funding for all community associations, and it also supports additional requirements by developers during the development process and prior to the transition of association control to homeowners. It addresses structural integrity through statutorily mandated building inspections at 10 years, 20 years, and every five years thereafter, as recommended by the American Society of Civil Engineers’ published protocol for building inspections.

Bauman also wrote that CAI encourages policymakers to engage industry stakeholders, including community associations, in an open forum over legislative initiatives and regulations involving short- and long-term rentals. The group’s position is that association boards of directors, with homeowner input, are the appropriate governing body to craft policies regarding whether short- and long-term rentals make sense for their community.

September 1, 2022

Florida’s Mandatory New Condominium Building Reporting System Begins with New Online Form

by Laura Manning-Hudson

Laura Manning-Hudson

The changes that the Florida legislature enacted during its special session earlier this year call for new requirements for structural inspections for buildings that are three stories or higher. They also create new reporting requirements for condominium associations and cooperatives, and call for the enhanced funding of reserves for major structural repairs.

The process established under the new law begins with the reporting of some basic information for all affected buildings throughout the state. The division that oversees condominiums and cooperatives under the state’s Department of Business and Professional Regulation has been charged with establishing the reporting system and collecting the information.

dbprlogo-300x170 The state agency has now officially begun these efforts with its new Building Reporting Form, which can be submitted online and is now available at www.myfloridalicense.com/DBPR/condos-timeshares-mobile-homes/building-report/.

The requested information on the form is very basic, so associations will not have much difficulty with this initial step. It includes the number of buildings on the property that are three stories or more in height, the number of units in such buildings, the addresses of all such buildings, and the counties in which they are located. The form must be submitted by Jan. 1, 2023.

August 2, 2022

Miami Herald Op-Ed Column by Gary Mars: “Federal Condo-Safety Financing Proposal Can Prevent More Tragedies Like the Surfside Collapse”

by Siegfried Rivera

Siegfried Rivera

For the second time in the last several months, firm shareholder Gary M. Mars authored an op-ed editorial column in the Miami Herald on a vital new piece of federal legislation to provide for condo-safety financing options for condominium associations and their unit owners. Gary’s new article, which is featured in today’s op-ed Opinion page of the Herald, discusses what he calls a perfect storm of rising insurance, inspections, repairs and reserves expenses that could jeopardize the finances of many South Florida condominium associations and force some owners to either sell or face the prospect of foreclosure. It reads:

. . . A recent Palm Beach Post article chronicled how the Portofino South Condominium in West Palm Beach received an 82% increase from its insurance carrier, while its directors and residents had expected an increase of about 25%, which the community got in 2021.

Mary McSwain, 67, who bought her one-bedroom unit in January, said her monthly dues are going from $914 to $1,347.

For most communities, increased insurance costs will come first, but increases created by the provisions of the state (and some county) mandates for structural inspections, repairs and reserve funding are sure to follow. Those provisions do not start until 2024 for the affected buildings, but association boards would be well advised to begin securing and vetting offers from qualified professionals for their long-term budgetary planning.

A federal proposal introduced recently by Florida U.S. Reps. Charlie Crist and Debbie Wasserman Schultz, together with another bill from the same lawmakers introduced in April, could provide relief for communities in immediate need of substantial repairs and renovations. The new Rapid Financing for Critical Condo Repairs Act of 2022 would let the U.S. Department of Housing and Urban Development’s Federal Housing Administration insure condominium association building rehabilitation loans issued by private lenders.

June 5, 2022

Miami Herald Real Estate Column by Roberto Blanch: “Lawmakers Deliver Huge Milestone in Evolution of Florida’s Condo Laws”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Real Estate Counselor column in today’s Miami Herald is authored by Roberto C. Blanch and titled “Lawmakers Deliver Huge Milestone in Evolution of Florida’s Condo Laws.” The article focuses on the state legislature’s passage of the most far-reaching condominium safety reforms in Florida since Hurricane Andrew. It reads:

. . . The changes include many of the proposals from engineering, legal and community association industry task forces aimed at studying the perceived shortcomings that led to the Surfside catastrophe. They require inspections for buildings three stories or higher 30 years after completion and every 10 years thereafter. Buildings within three miles of the coast must be inspected at 25 years, then every 10 years. The first buildings impacted are slated to be those constructed before July 1, 1992, as they must complete their first structural inspections prior to Dec. 31, 2024.

The inspections are aimed at identifying any substantial structural deterioration that may present life-safety dangers, and whether remedial or preventive repairs are recommended. The reports on their findings will be required to be distributed to association unit owners, prospective buyers and local building departments, which may then require the start of repairs within specified timeframes if substantial deficiencies are identified.

Associations will also be required to conduct reserve studies every 10 years for the funding of structural repairs and, most important, beginning by 2025 they will no longer be allowed to waive funding of many reserve components.

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June 3, 2022

New Miami-Dade County Ordinance Shortens 40 Year Recertification to 30 Years

by Roberto C. Blanch

Roberto C. Blanch

The tragic collapse of Champlain South Tower has prompted various changes state-wide in regards to condominium safety-reforms. Although just last week Florida passed its first ever state-wide condominium safety reform bill, on June 1, 2022 Miami-Dade County’s Board of County Commissioners released an ordinance establishing even more stringent procedures for the recertification process. The following are key takeaways:

All buildings (except single-family homes, duplexes, and structures housing fewer than 10 people) must undergo recertification upon reaching 30 years of age and every 10 years thereafter.
Local jurisdictions will provide buildings with a courtesy notice one and two years prior to their recertification anniversary.
Buildings will also receive a reminder 90 days before the report submission due date of recertification deadline.
The same notice schedule applies for the 10-year incremental recertifications.

Buildings and structures built between 1983-1992 must undergo recertification for their 30-year period on or before March 31, 2024. They are not subject to the courtesy notification requirement.

Buildings built between 1983-1986 are exempt from the 30-year recertification requirement, only if a 40-year recertification report for the building would be otherwise due before March 31, 2024, and such report is timely submitted.
Within 90 days of the Notice of Required Inspection, a written report must be submitted to a building official certifying that the building is both structurally and electrically safe for continued occupancy. Submission of a report will also be deemed timely if submitted any time between two (2) years before the building’s recertification anniversary.

June 1, 2022

Florida Legislature Passes Swift Safety Reform Bill During Special Session

by Laura Manning-Hudson

Laura Manning-Hudson

Condominium safety reforms were very much in the spotlight during this year’s regular session following the unforgettable tragedy in Surfside, Florida. Though legislators could not agree on legislation pertaining to safety reforms during the regular session, they successfully did so during a special session. In a surprising move, Senate Bill 4-D unanimously passed in both the House and Senate and was recently signed into law by the Governor. The following are the key takeaways from the 88-page bill:

The “Milestone Inspection”

Florida has now imposed a state-wide structural inspection program for condominium and cooperative associations that are three (3) stories or more in height defined as a “milestone inspection.”
Community association managers or management companies contractually hired by a condominium association that is subject to this inspection must comply with this section as directed by the board.
Milestone inspections must be performed by December 31 of the year in which the building reaches 30 years in age, based on the issue date of the building’s certificate of occupancy, and every 10 years thereafter. Buildings located within 3 miles of the coastline must perform a milestone inspection by December 31 of the year in which they reach 25 years in age, and every 10 years thereafter. Buildings with a certificate of occupancy that was issued on or before July 1, 1992 must have the initial milestone inspection performed before December 31, 2024.
Condominium and cooperative associations are responsible for the scheduling and costs associated with the milestone inspection.
Milestone inspection means a structural inspection of a building’s load-bearing walls and primary structural members/systems.
Milestone inspections must be performed by a Florida licensed engineer/architect who must attest to the life safety and adequacy of structural components of the building. To the extent that it’s reasonably possible, the inspection must determine the general structural condition of the building as it affects the safety of building, such as necessary maintenance, repairs and replacements of structural components.
“Substantial structural deterioration” is described as substantial structural distress that negatively affects the building’s general structural condition and integrity.

fla-legislature-300x198 Milestone inspections will consist of two phases:

- Phase one — Visual examination of habitable/nonhabitable areas of 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.
- Architect/engineer who performed inspections must submit a sealed copy of the inspection report and findings to both the association and appropriate local building official
Local enforcement agencies will provide buildings required to comply with this law notice of required inspection by certified mail.
Upon receiving notice, condominium/cooperative associations will have 180 days to complete phase one of the inspection.

April 14, 2022

The Path Forward for Florida Condo-Safety Reforms

by Roberto C. Blanch

Roberto C. Blanch

Florida’s legislature has received very poor marks for its failure to pass any condominium-safety reforms after the horrific Champlain Towers tragedy. Many condominium residents and community association attorneys expected the state’s lawmakers would strike a deal on a bill to revamp Florida’s existing condo regulations by requiring periodic inspections of buildings.

Pundits and newspaper columnists are lamenting the fact that the two chambers ultimately could not agree on whether to require condominium associations to maintain financial reserves for major structural maintenance and repairs. Given the horrific tragedy that claimed 98 lives, not-to-mention the significant number of aging buildings across the state with potential structural deficiencies, it is no surprise that there has been an outcry after the legislature failed to act.

Taking into consideration that this year’s legislative session began just over six months after the collapse, the legislature’s inability to establish mandatory safety reforms and require specific funding conditions for condominiums throughout the state was actually not very surprising. The issues of high-rise structural inspections, condominium association financial reserves, and mandatory fire sprinklers have flummoxed lawmakers in Florida and other states for decades.

Florida’s legislators should now take the time to work through the difficult details of condominium high-rise safety reforms during the remainder of the year and the pre-session legislative meetings for the 2023 session. There may not be a one-size-fits-all solution for condominium buildings of varying heights and stages in their lifespan.

March 27, 2022

Firm’s Miami Herald Real Estate Column: “What’s Next for Condo-Safety Reforms After Legislature Fails to Act?”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column authored by Gary M. Mars appears in today’s Neighbors section and is titled “What’s Next for Condo-Safety Reforms After Legislature Fails to Act?”. The article focuses on the very poor marks that the state legislature has received in newspaper editorials from the Herald and across the state for its failure to pass any condominium-safety reforms after the horrific Champlain Towers tragedy. It notes the editorials lament that the two chambers ultimately could not reach bicameral agreement on whether to require condominium associations to maintain financial reserves for major structural maintenance and repairs, and they are certainly correct to bemoan the legislative shortfall. Gary’s article continues:

. . . However, from the point of view of someone who has kept a finger on the pulse of the state’s condominium laws for the past 30 years, the failure of the legislators to pass reforms during the session that began just over six months after the collapse was not surprising. Lawmakers in Florida as well as other states have been grappling with the issues of high-rise structural inspections and condominium association financial reserves for decades, not-to-mention fire sprinkler and suppression systems that can be very difficult and expensive to retrofit into older buildings.

It was perhaps overly auspicious of lawmakers to propose sweeping reforms without having first ironed out many of the important aspects of the proposals in the pre-session legislative meetings. They put forth many of the recommendations from task forces from engineering/construction trade groups and The Florida Bar, but they ultimately could not agree on the details of inspection dates and reserve funding levels.

Even with no changes to the state’s laws, significant condo-safety reforms are being implemented by lenders after major changes in underwriting requirements from government-sponsored Fannie Mae and Freddie Mac. In fact, many associations have already been struggling to comply with the new requirement from these quasi government agencies for lenders to have the condominium associations for mortgage applicants complete an eight-page form. For towers in their teen years that have never conducted any kind of major engineering inspections, association directors are completely unequipped to attest to their buildings’ current structural integrity in these questionnaires, and the potential legal liabilities would preclude them from making such representations.

March 21, 2022

Gary Mars Quoted in Front-Page Article in Today’s Sun Sentinel: “Failed Condo Safety Bill Leaves Residents, Buyers in Limbo”

by Siegfried Rivera

Siegfried Rivera

An article featuring insights from firm shareholder Gary M. Mars appears on the front page of today’s Sun Sentinel. The article, which is headlined “Failed Condo Safety Bill Leaves Residents, Buyers in Limbo,” focuses on what is in store for condominium safety reforms from lenders and insurers after the measures before the Florida Legislature failed to pass during the 2022 session that ended last week. The article reads:

. . . Some condo lawyers argue that it was too ambitious to expect that a sweeping safety bill could be passed in a short three-month legislative session.

“I know it was very, very ambitious legislation,” said Gary Mars, a condo lawyer at Siegfried Rivera in Coral Gables. “It would have taken a lot of effort to get it through all of the machinations developing legislation of this type.”

He noted that not every building is in dire structural straits, or even old enough to be required to follow inspection rules such as the ones in Broward and Miami-Dade counties, which mandate deep-dive studies after 40 years.

“I represent a lot of associations in buildings in their teenaged years,” he said.

“They’re getting sophisticated reports” from their engineers about deferred maintenance issues such as waterproofing, balcony restorations and painting, Mars said. But the reports don’t cover structural issues.

“They may have wonderful reports, but those reports don’t give the association the ability to check the box” about the building’s overall condition, he said. “There’s not a perfect solution to this problem.”. . .