The recent Florida condominium safety and reserve funding legislation has proved to be a source of confusion for many Florida condominium associations.The stakes are high since these statutes took effect as of July 1, 2022.In SB-154 (the "Glitch Bill"), the Legislature attempted to remove various ambiguities in the original legislation.For many condominium associations the clock is now ticking, and the professionals required to perform the new safety and reserve inspections are in very short supply.With that in mind, Tannenbaum Lemole & Hill has prepared a simplified "quick reference" educational guide for directors and managers.We recommend that boards and managers ultimately consult with association general counsel to ensure proper compliance with the new laws.

Milestone Structural Safety Inspection

Structural Integrity Reserve Study (SIRS) 

*This Quick Reference guide is for educational use only.It is not intended to provide legal advice and should not be used for that purpose.You should consult with an attorney to determine how these provisions apply to your specific condominium association. 

RECENT DEVELOPMENTS IN THE SURFSIDE INVESTIGATION POINT TO THE CRITICAL IMPORTANCE FOR OWNER-CONTROLLED ASSOCIATIONS TO COMMISSION TURNOVER ENGINEERING STUDIES 

On June 16, 2023, a number of news outlets reported that preliminary investigative reports of the Surfside condominium collapse have identified a latent structural design flaw at the building's elevated pool deck.According to the lead federal investigator, the design plan for the pool deck "fell well short of the applicable building code."More to the point, the investigator added that "from the beginning, the original structural design provided low margins of safety."

If this preliminary conclusion turns out to be validated, it will stunningly highlight a common misperception among condominium boards of directors who are coming out of turnover from developer control.That stunning misperception is that a certificate of occupancy is tantamount to conclusive proof that a condominium is free from life-threatening latent defects.This is certainly not a knock on local building inspectors, but it does shine a spotlight on a prudent decision frequently overlooked by new owner-controlled boards, namely the independent commissioning of a post-turnover engineering assessment of building conditions.

One must wonder whether a post-turnover engineering assessment would have prevented the horrible tragedy at Surfside.We'll never know.However, a thorough engineering assessment may have averted a disaster, and that is the point for future condo associations to consider.No doubt such engineering inspections are expensive.But the expense is a small price to pay to avert tragedy.Furthermore, when performed under the guidance and assistance of competent construction attorneys, those engineering studies can pave the way for recovering the costs of correcting any discovered defects from the developer, architects, engineers and contractors who constructed the building.

Notwithstanding the tragic example of Surfside, the Florida legislature recently caved to developer interests and substantially shortened the time for condominiums and other community associations to make claims against developers, designers and contractors for latent, undiscovered defects, from 10 years to 7 years.This seems to be at complete odds with the lessons coming out of the Surfside investigation.Nevertheless, it underscores the idea that prudent owner-controlled boards would do well to act quickly in having their buildings evaluated for hidden time-bombs and establishing a baseline for proper maintenance of those buildings over their life expectancy. 

HB837 was signed by the Governor on March 24, 2023.It presents one of the most significant legislative tort reform efforts in Florida over the last 50 years.Let's look at some of the key features which impact Florida condominium and homeowners' associations.

Statute of Limitations on Negligence Claims

HB837 shortens Florida's statute of limitation on lawsuits for negligence claims from four to two years.Negligence lawsuits are typically claims for personal injury or property damage resulting from things like car accidents, slips and falls, and construction site accidents.If either the association or someone else has been damaged or injured from an accident on association property, the time to commence a lawsuit on that claim is now much shorter.Unfortunately, associations might see a rush by others to file lawsuits against an association for accidents that have occurred on association property within the last two years.WHAT CAN YOU DO?If your association has sustained property damage due to the negligent conduct of someone else, you should confer with legal counsel right away.A lawsuit on your behalf may need to be filed quickly.In the case of any recent on-site accident, gather and preserve all records relating to the accident.Adopt procedures for future documentation of the date, place and circumstances of any accidents occurring on-site.

Modified Comparative Negligence

Florida was a pure comparative negligence state.This meant that in a typical accident case a jury could apportion fault between all of the parties, and a claimant's damages would be reduced by the proportionate share of the claimant's own fault for the accident.Now, however, if the claimant is found to be more than 50% at fault, the claimant cannot recover damages.WHAT CAN YOU DO?This is a situation where solid recordkeeping can be key.Inspection reports, video surveillance data, incident reports, and notes taken at or near the time of the accident can all be valuable and admissible evidence in demonstrating that an injured claimant was more than 50% at fault for an accident while on association property.Going forward, having solid procedures for routine grounds inspections and reporting, incident reporting and accident documentation is critical.

Multi-Family Residential Building Safety Against Crime

Associations with multi-family residential buildings with at least five dwelling units can now greatly increase their protection from lawsuits emanating from criminal conduct on-site.By instituting certain security measures, these associations can create a "presumption against liability" for personal injuries or property damage suffered by residents, guests and association employees as a result of crimes committed by anyone other than association employees and agents.The security measures include: (1) installing security cameras at all points of entry and exit which record and maintains 30-days of retrievable footage; (2) well-lit parking lots from dusk until dawn; (3) 1-inch deadbolts on each dwelling unit door; (4) locking devices on windows and sliders; (5) locked access to pools; (5) peephole viewers on solid dwelling unit doors; (6) obtaining a "crime prevention through environmental design assessment" performed by a qualified assessor by January 1, 2025; (7) by January 1, 2025, providing "proper" crime deterrence and safety training to all existing building employees; and (8) after January 1, 2025, providing such training to all new employees within 60 days of hire.WHAT CAN YOU DO?This new legislation puts significantly more power in the hands of association boards and managers to shield their communities from liability for injuries caused by criminal conduct.However, some of these measures, especially relating to locking devices and peepholes on unit windows and doors, do present some obstacles.Many associations exclude unit windows and doors from an association's maintenance obligation; therefore, some decisions may need to be made with regard to amending governing documents to either include these items or to require unit owners to implement and maintain these features themselves.Furthermore, since certain safety assessments need to be performed by independent assessors it is advisable to implement these safety measures and arrange for the inspections well before the deadline of January 1, 2025.

    Conclusion

HB837 provides community associations with significant relief from claims for property damage or personal injuries resulting from accidents or criminal activity on-site.We've provided a general summary of the portions of this law which should be important to community associations.Like any legislation, the devil is in the details and we recommend that association boards and management consult with general counsel to gain a fuller understanding of how these provisions will impact the governance and operation of their communities. 

On March 14, 2023, the Governor signed SB-360 which addresses, among other things, a shortening of the statute of repose for construction defect claims.

A "statute of repose" or "repose period" is a hard deadline on bringing claims against a developer, design engineer, architect, builder or other contractor for defective design or construction.Until last week, the repose period in Florida was 10 years, generally running from completion of the building or actual possession by the owner, whichever was later.

SB-360 shortens the repose period to 7 years from the date of a temporary certificate of occupancy, final certificate of occupancy, certificate of completion, or the abandonment of construction of an uncompleted improvement, whichever is earliest.SB-360 also makes it clear that in a multi-building community, the repose period runs on a building-by-building basis, not from completion of the community.The law is effective immediately.However, for any community which has buildings or site improvements completed more than 7 years ago, but less than 10 years ago, it provides a grace period until July 1, 2024 to commence a claim for damages from defective construction against the responsible parties.

This new legislation presents difficult issues for existing Condo and HOA communities.Going forward, many communities may see situations where turnover is beyond 7 years from completion of the buildings or the site improvements.Thus, developers have an incentive to delay turnover to defeat future claims against them.Furthermore, since the repose period is measured building-by-building, an Association may have to front multiple lawsuits against a developer who builds a large multi-building community over a period of many years.

The immediate takeway for Condo and HOA managers and boards is to act now to preserve claims for the defective construction of your buildings or site improvements completed more than 7 years ago, but less than 10 years ago – you have until July 1, 2024 to investigate those claims, prepare and serve Chapter 558 Notices of Construction Defects, and commence a lawsuit.Communities in that bracket would do well to engage a forensic engineer to investigate your buildings and site improvements expeditiously. 

The recent Florida condominium safety and reserve funding legislation has proved to be a source of confusion for many Florida condominium associations. The stakes are high now that these statutes have taken effect as of July 1, 2022. For many condominium associations the clock is now ticking, and the professionals required to perform the new safety and reserve inspections are in very short supply. With that in mind, Tannenbaum Lemole & Hill has prepared a simplified "quick-reference" guide for directors and managers. As always, we recommend that boards and managers ultimately consult with association general counsel to ensure proper compliance with the new laws.

Milestone Structural Safety Inspection

** Note – The original reserve funding language remains in the statute too. That section, 718.112(f)(2)(a), requires, among others, paving reserves and reserves for any item having a deferred maintenance or replacement cost that exceeds $10,000.00. Therefore, it is currently ambiguous as to whether reserves are now required for any item exceeding $10,000.00, or only if the item, in addition, would negatively affect the remaining reserve items. Associations should consult with general counsel on this issue. 

Community associations confronted with construction defects face some very difficult financial choices. Often, these choices come on the heels of turnover, when a newly minted, owner-controlled board is just getting their bearings on planning and managing their operating and reserve accounts. Or, the defect may emanate from an expensive major repair project funded by member special assessments. Typically, the choices involved in these scenarios are: (1) do nothing; (2) make necessary repairs and pay for them entirely out of member assessments; or (3) hire a construction defects lawyer with the view of securing money from the responsible parties to reduce or, possibly, eliminate the amount of repair costs that would be otherwise funded entirely by owners. Let's look at the key risks and potential rewards involved with each.

1. Do Nothing

It should go without saying that the "do nothing" approach is ill-advised in almost every case. In Florida's harsh climate, any defects which compromise the building envelope or structural components are a ticking time bomb. At worst, an association taking this path may be faced with a Champlain Towers-style tragedy. Short of that, small problems eventually turn into large problems; the money saved by ignoring the issue today will surely turn into a significantly larger financial burden on owners when the problem can be ignored no longer. Plus, when the problem finally becomes too big to ignore, Florida's statute of repose and statute of limitations may shut the door to any claims against the responsible parties.

2. Self-Fund and Make Repairs

Perhaps the association is inclined to bite the proverbial bullet, making and paying for the needed repairs entirely out of association funds. Obviously, this serves the purpose of correcting the defective conditions expeditiously to prevent further damage and deterioration. However, here the association is faced with self-funding 100% of the costs to repair the shoddy work. This will be an unanticipated drain on reserve funds; alternatively, it may require a new round of special assessments. There will be some very unhappy, unwilling, or even unable owners confronting this association's board of directors. Un-repaired defects and/or high assessment default rates can severely harm an association's ability to obtain affordable property insurance and lines of credit. Time and time again, option 2 can effectively turn into option 1 due to members either unwilling or unable to approve and/or pay for the funding needed to perform the repairs.

3. Hire a Construction Defects Lawyer and Pursue a Claim

Very few people in this world enjoy the prospect of having to "lawyer up."At the end of the day, however, this usually turns out to be the most economically positive choice when faced with significant construction defects in your community. The goal of any experienced construction defects law firm is to return a positive net result to the client – a result that reduces owner-funding of repair costs by some or, even, all. Think of it this way, under options 1 or 2 the owners will pay for everything. Under option 3, the owners may pay nothing, but even if not, anything short of 100% is a win. In our experience, 97% of construction defect lawsuits settle without trial resulting in positive net cash flow to the association. That net cash flow can be used to reduce (or perhaps eliminate) the repair cost burden. This is true even where the claim amounts involved do not merit a full-contingent fee arrangement. In other words, even in instances where the claim amount might only attract a lawyer working on an hourly fee basis, the net result should ultimately result in, at worst, the association only bearing a portion of the overall repair costs.

4. Conclusion

A community association faced with construction defects has 3 options for covering the costs of repairing those defects: (1) do nothing; (2) make and pay for repairs; or (3) engage a construction defects lawyer to pursue claims against responsible parties. Options 1 and 2 will always result in 100% homeowner funding of repair costs. In most instances, option 3 will result in reducing homeowner funding by some or all. And, as a sage person once said, "something" is usually better than "nothing."

Many Americans are by now familiar with the shortage of consumer goods resulting from the Covid-19 pandemic.Condominium and homeowners' associations have also been faced with supply disruptions affecting planned or on-going major repair projects.Many a community association is being asked by its contractors to accept both delays and price increases for the work.The phrase "force majeure" has suddenly become a crucial concept in dealing with requested delays and price changes in projects already under contract.

What is Force Majeure

Force majeure – a French phrase – literally means "superior force."Lawyers and clients, alike, typically think of force majeure as being a contract clause covering the consequences of uncontrollable events such as storms, labor strikes and the proverbial "acts of God."Such clauses can provide for extensions of time, increases in pricing, or even termination of the contract.Yet, every force majeure clause is different.Associations faced with a contractor's force majeure request mid-project need to carefully analyze the wording of that clause to determine what its obligations are.Associations preparing to negotiate or sign a contract should undertake careful drafting of a force majeure clause to shift as much risk of uncontrollable events onto the contractor.Though often contained in the contract's general conditions or buried at the end of the contract, force majeure clauses should never be casually overlooked as mere boilerplate.

Force Majeure Drafting and Interpretation

Contractors commonly advocate that any unplanned circumstance which makes a contractor's performance extremely difficult, expensive – or even impossible and profitless – relieves the contractor from completing the contract.This is not true.If the event's risks were reasonably foreseeable, Florida law places the burden on the parties to specifically address them in the contract.Or, as one court stated, a contractor can't simply get out of a contract made difficult by unplanned events "if the relevant business risk was foreseeable at the inception of the agreement and could have been the subject of an express contractual agreement."Home Design Center – Joint Venture v. County Appliances of Naples, Inc., 563 So. 2d 767, 769-770 (Fla. 2d DCA 1990).Therefore, during contract negotiations both sides are advised to pay strict attention to the kinds of events that will allow an adjustment in the contractor's obligations, and what kinds of adjustments will be allowed.Anything that was foreseeable, but not accounted for in the contract, will be at the contractor's risk.

Associations facing existing pandemic-related force majeure demands should scrutinize the terms of the existing force majeure clause in the contract.For example, one could argue that any reputable roofing contractor entering into a contract within the last six months should have reasonably foreseen potential materials shortages and price increases due to the pandemic.Therefore, does a fair reading of the force majeure clause in your contract include events such as "national emergencies" or "supplier failures."If it does, then pandemic-related supply disruptions would arguably be the basis for a force majeure adjustment.What adjustment, then?Again, look to the contract language.Is a time and price adjustment permitted?Or just a time adjustment?For example, consider the following clause which provides that:

the excused party shall use reasonable efforts to avoid and remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased.

Arguably this language allows the contractor a time adjustment, but on condition that the contractor explore other supplier options and begin performing once supplies are reasonably available.It does not, however, suggest the availability of a price increase.Therefore, the association faced with this force majeure clause should consent to reasonable extensions of the contract times while resisting a request to pay for increased materials costs.

To conclude, a community association is always advised to address force majeure provisions with great care during contract drafting.When confronted with a force majeure request mid-project, an association should carefully read and interpret the existing force majeure clause and seek legal counsel as to the obligations imposed by it.At the end of the day force majeure provisions are the primary risk adjustment tool in the face of events beyond the parties' control.

 Controlling The Compensation Game With Three Decisive Plays

We are fortunate to live in a world where our vehicles are equipped with a "check engine" light to alert us to impending problems with our cars. Wouldn't it be wonderful if buildings came with the same type of warning system? Unfortunately, the first hint of a design or construction flaw in our buildings might only happen when it's too late. Water intrusion, stucco cracking, roof leaks - to name just a few – are most often the outward signs of more sinister latent design or construction defects that can spell significant economic hardship to come. Facing such conditions, a smart building owner or community association board will act decisively to control the risks of spiraling repair costs or crippling special assessments. In the spirit of March Madness, here are the three most critical moves a smart building owner or community association can make to win the game of securing compensation from the responsible parties.

1) Manage the Game-Clock (The Statute of Repose)

Many a building owner or community association has been stuck paying for the sins of an architect or general contractor simply due to poor time management. Florida gives building designers and contractors an absolute bye for their defective work after ten years. You may have a slam-dunk claim for design/construction/repair defects, but if you don't start a lawsuit within ten years, it's game over. And, by "starting a lawsuit" our courts mean the actual filing of a complaint in Circuit Court. If you suspect that there are design, construction, or repair flaws with your community's buildings, you should immediately consult an experienced construction defect lawyer. An early start to negotiating with the responsible parties may save you from a late-game scramble to file a costly lawsuit in order to protect your claim.

2) Manage the Shot-Clock (The Statute of Limitations)

Sometimes you may have plenty of time left on the game clock, but Florida law also imposes a second deadline on claims against a design professional or contractor. You must commence a lawsuit for construction defects within four years from the discovery of the defect. If your building is leaking, or if stucco is debonding from the exterior, don't let time significant time pass without investigating the causes of these conditions. Between hiring claims counsel, securing the right engineering studies, gaining necessary membership approvals, four years from discovering building leaks or stucco problems can pass at the speed of a late-game fast-break.Therefore, at the first sign of a defective design or construction condition, seek the advice of experienced construction defect counsel to begin preparing for the possibility that the only way to get the responsible parties to pay up is through litigation.

3) Get Your A-Team On the Court

Winning the game against large and well-funded design and contracting firms requires a team of game-tested veterans. Putting the wrong lawyers, engineers and other experts on the court is like putting a squad of rookies up against LeBron's Lakers. At the first sign of possible defects in your buildings, you should consult a law firm that concentrates on representing building owners in construction defects claims, and who can recruit the right team of supporting players. Securing compensation from architects and general contractors is a highly specialized undertaking. It typically requires engaging forensic building engineers who are not just good at engineering, but who can also handle themselves under intense questioning from highly-paid construction industry lawyers – that's a very niche skillset indeed, but one which will go far in helping your side control the flow of the game right from the first whistle.

In conclusion, at the first sign of building defects, you have a critical choice of plays. Act decisively to control the game and secure compensation for what may be very costly repairs. Or let the game control you and end up eating large and unexpected repair costs. Follow these three, crucial, early-game strategies and you'll give yourself or your community the best chance to avoid paying for the mistakes of your building's designers, builders, and repair contractors.

"Turnover" may be the most important event in the life of a condominium or homeowner association.Turnover transfers association governance from the developer to directors who are answerable solely to members and their wallets.Newly-minted owner-directors must manage millions of dollars of infrastructure such as roads, drainage systems, ponds, lift stations, and pools.For multi-family buildings, this can also include building roofs, stucco, paint, waterproofing and balconies.Florida law imposes a fiduciary duty on these volunteer directors to make well-conceived, long-term plans for maintaining and replacing these assets.The critical nature of this planning suggests that every post-turnover board consider hiring an experienced construction claims lawyer to assist in guiding the association through a successful completion of the turnover process.Let's explore 3 reasons why this is so.

1. The developer wants to walk away scot-free.

At turnover most developers want to resolve any lingering, obvious construction quality disputes with a cash settlement and a general release of all future construction-related claims.Working in tandem with the right forensic engineers, a construction attorney can assess whether there are any non-obvious, latent construction defects impacting the useful lifespan of major common elements.By foregoing this critical guidance the board may financially short-change its members, setting them up for large, unanticipated maintenance, repair and/or replacement assessments in the future.Don't fall victim to releasing a developer, only to later discover hidden construction defects requiring a surprise assessment.

2. The clock is ticking

Florida community associations have just ten years from completion to discover hidden construction defects and to sue the developer for compensation.In our experience the worst construction defects are rarely obvious.Hidden defects in roads, drainage systems, roofs, building envelopes, foundations and the like are rarely discovered without the right types of forensic investigation.An experienced construction defects lawyer knows what types of investigations to recommend in order to discover ticking time-bombs which may not go off until after the developer's immunity kicks in.

3. Statutory Warranties for Condominiums

Florida condominiums get an added benefit of extremely valuable, but limited-duration, warranties from their developers.Warranty claims are particularly impactful because the association need only prove that the covered element was defective within the warranty period.This is another example where an experienced construction attorney can assist in guiding forensic engineering investigations for maximum impact.Defects discovered outside the warranty period are often less valuable litigation claims against a developer than those discovered during the warranty period.Don't give the developer another free pass by ignoring the compelling compensation value of latent defects discovered while the developer's warranties are in existence.

To conclude, post-turnover, volunteer board members carry a heavy burden to be good stewards of their community's infrastructure, avoiding the surprise of unexpected repair or replacement needs.An experienced construction defects lawyer is crucial in guiding a new board through a complete investigation of its potential claims against the developer, ensuring that the developer – and not the association - bears full financial responsibility for the developer's defective work. 

These days Floridians find themselves sprinting towards hurricane season with the unfamiliar specter of a global pandemic still nipping at their heels. For condominium unit owners still practicing vigilant self-distancing, an association's need to enter into their unit may seem like a giant "not happening!" But is it? What are an association's duties and powers when it comes to entry into a condominium unit during the COVID-19 crisis?

The Association's Maintenance and Repair Obligation

By now it shouldn't come as a surprise to any property manager or board member that a condominium board has both statutory and contractual duties relating to the maintenance and repair of the community's common elements. Florida courts have stressed that an association board acts at its distinct peril in neglecting these duties. Not only does the board face the possibility of being directed by a court to take action, or the association being assessed damages for its failure to act, but under the Florida Condominium Act an association faces the prospect of having to reimburse a unit owner's attorneys' fees and costs in securing relief against a recalcitrant association. See Coronado Condominium Association, Inc. v. Scher, 533 So. 2d 295 (Fla. 3d DCA 1988).

Entry into Units – Standard Authority

There are times where discharging its maintenance and repair obligations requires an association to enter into an owner's unit. These instances are always ripe for disagreement. The Florida Condominium Act provides statutory authority on the association's side in the right circumstances. Fla. Stat. 718.111(5) allows a condominium association to enter a unit during reasonable hours in order to maintain or repair that which the association has a duty to maintain or repair, "or as necessary to prevent damage to the common elements or to a unit or units."

Despite this statutory ground for unit access, it is worth noting that Florida courts have construed these grounds narrowly. Recent appellate court decisions have looked for both: a) independent contractual authority to enter within the governing documents; and b) that the board's decision to enter is supportable as a reasonable business judgment under the circumstances. See, e.g., Small v. Devon Condominium B Association, Inc., 141 So. 3d 574 (Fla. 4^th DCA 2014).

Emergency Powers

The Florida Condominium Act also vests boards with special powers during times of declared states of emergency. Fla. Stat. 718.1265(j). If an official state of emergency is declared, a condo board can authorize entry into a unit in order to "mitigate further damage" by arranging "for the removal of debris, or to prevent or mitigate the spread of mold or mildew, or by removing wet drywall, insulation, carpet cabinets or other fixtures." No doubt these approved mitigation efforts are directed squarely at hurricane events. However, the declaration of a state of emergency - even as to a global pandemic – will provide a board with broad statutory cover for acting decisively to mitigate concurrent storm or water-related damage to other units and common elements.

How Does COVID-19 Exposure Fit Into the Analysis?

Even without a declared state of emergency and enforced stay-at-home restrictions, owners may still be extremely reticent to allow strangers into their homes, and boards may be equally concerned about the safety of their employees and agents, or the legal ramifications of exposing people to the COVID-19 virus. These are valid concerns; yet, at the proverbial end of the day, a condo board must always act reasonably to protect, maintain and repair common elements and other units. State of emergency or not, as we approach the storm season in Florida many associations may find themselves in the unenviable position of having to risk COVID-19 exposures in performing otherwise reasonable actions to secure common property. It will be incumbent upon boards to ensure that their decisions are well-founded, documented, and otherwise reasonable under the circumstances.

Common sense should guide a board in implementing an entry into an owner's unit. As much notice as is practicable should be given. CDC guidelines relating to social distancing and disinfecting should be followed by those entering the unit. Unit owners should be pre-informed on exactly what precautions will be taken to minimize exposure risk. A savvy condo board would do well to establish and communicate these emergency protocols now, rather than hastily cobble them together immediately before, during, or in the aftermath of a weather catastrophe or plumbing leak.

Conclusion

Despite the novel and significant risks posed by the current coronavirus pandemic, COVID-19 should be appreciated as an existing condition to be protected against by following CDC guidelines; it should not be viewed as an excuse for avoiding reasonable protective action against imminent or further property damage.