In June 2021, the Champlain Towers South condominium complex located in Surfside, Florida suddenly collapsed. After the collapse, the National Institute of Standards and Technology began an extensive inspection to determine the cause of the heartbreaking disaster and, although the investigation will take years to complete, it is noteworthy that the condominium underwent inspection in 2018 as required by Broward County law. This 2018 inspection report noted major damage to the structural concrete slab beneath the pool deck as well as cracking and crumbling of the columns, beams and walls of the parking garage that was situated beneath the building.
Now, more than six months after the catastrophic collapse, many Florida condominium owners, board members, and prospective buyers are left wondering what, if anything, can be done to prevent another tragedy similar to that which occurred in Surfside.
Generally speaking, condominiums in Florida are only required to be inspected at the time construction is completed. Chapter 718 of the Florida Statutes, known as the Condo Act, requires a condominium developer to prepare and deliver a turnover inspection report attesting to required maintenance, useful life, and replacement costs of the following common elements:
- Fireproofing and fire protection systems;
- Heating and cooling systems;
- Electrical systems;
- Swimming pool or spa and equipment;
- Pavement and parking areas;
- Drainage systems;
- Painting; and
- Irrigation systems
Miami Dade and Broward counties are currently the only counties in the State of Florida that have implemented a law that is slightly more stringent than the Condo Act. In these counties, a condominium building must be reinspected once the building reaches 40 years old and every 10 years thereafter.
As previously noted, the Champlain Towers South Condominium Association did comply with the Broward County reinspection law and underwent a mandatory reinspection in 2018. So, if the association complied, how is it possible that the building collapsed?
The answer to this question may lie in the fact that the Condo Act does not include any express maintenance, repair or replacement standards for boards of directors to follow. Instead, the Act provides that maintenance of the common elements is the responsibility of the association. In other words, boards of directors may maintain, repair, and replace the common elements in accordance with its reasonable business judgment. Therefore, determination of what acts or omissions constitute a breach of fiduciary duty is left to the courts on a case-by-case basis.
In the case of the Champlain Towers South Condominium Association, it is true that the inspection report noted numerous problems. However, addressing these problems and making the necessary repairs would cost millions of dollars and result in unit owners paying assessments ranging from around $80,000 to over $300,000. Because nothing in the report indicated that there were major safety concerns or that the building was in danger of collapsing, the assessment collection process was unfortunately slow to start.
After the Surfside collapse, The Florida Bar created a task force to review the Condo Act and to make recommendations to reform the Act in ways that address the issues related to structural reinspection and reserve funds in order to prevent future tragedies. The task force finalized a 170-page report that was sent to the Legislature in October. Some of the most relevant recommendations are as follows:
- Requiring periodic structural and safety inspections of all condominium and cooperatives 3 stories or higher. Specifically, the task force has recommended that by December 31, 2024, any residential condominium 3 stories or higher, be inspected and the association obtain a report from a licensed architect or engineer attesting to the current and deferred maintenance standards, useful life, and replacement costs of the common elements. Furthermore, an updated report is recommended every 5 years thereafter.
- Clarifying and expanding the Act to require timely maintenance, repair and replacement of structural and life safety systems in vertical construction consistent with and keyed to Section 718.301(4)(p).
- Requiring inspection reports to be available for unit owners to review.
- Amendments to the Act to require periodic reserve studies. The task force has noted that as the law currently stands, the Act does not require reserve studies and allows a reduction or waiver of reserved funding by a simple majority vote. Furthermore, the Act does not limit the number of years an association may waive reserve contributions. Therefore, an association who opts to forego reserve funding may face severe financial hardship when inspection reports indicate that costly repairs become necessary.
It is unclear what, if any, amendments will be made to the Condo Act in the next legislative session or if individual counties will start implementing reinspection requirements that mirror those in Miami Dade and Broward counties. Regardless, with there being more than 1.5 million condominium units in the state of Florida, owners, boards, and prospective buyers must be aware of the potential issues associated with an aging building and take appropriate action to avoid safety concerns.