Efforts underway to hold cities and condo associations more accountable
Even as rescue workers continue to search through the rubble of the Champlain Towers South condo building, South Florida lawmakers are vowing to push legislation aimed at preventing another similar tragedy.
“Legislation is being looked at on reserves and the recertification process,” Miami-based attorney David Haber, who is helping push the changes, told Yahoo News.
Haber, the founder of a firm that specializes in construction law, real estate law and community association law, is fighting to change how condominium safety is governed following the devastation in Surfside, Fla., a beachfront community near North Miami.
Currently, Miami-Dade County requires that buildings 40 years or older get recertified to ensure safety for continued use. In its 40th year, the Champlain Towers South condo association approved a $15 million assessment in April that residents would be responsible for paying. But the long wait period for recertification along with lax enforcement from the local government proved to be detrimental.
“You have to remember that condominium association board directors are volunteers, and the more liability you give them, the less likely someone is willing to serve on a board. So you have to be careful about making it too stringent to serve on a board,” Haber said.
“At the same time, we currently have what’s called the business judgment rule, which says that a board member can be liable if their actions rise to the level of willful, wanton or intentional misconduct, so that’s the standard for which they can have some liability.”
Florida lawmakers strengthened the state’s building code following the disastrous Hurricane Andrew in 1992, which ravaged areas of South Florida. The problem is that many Miami-Dade County apartments and condos, like Champlain, were built before that time.
Even so, sea level rise, stronger storms and flooding can cause corrosion in buildings much worse than expected. Haber said he believes less discretion should be given to the condo boards and more should be put into the hands of municipalities.
“You don’t ask the patient how to do the surgery,” he said.
Once issues are docketed with the city, he said, then associations need to be held accountable.
“The time clock starts ticking and you have to now start doing certain things by certain time frames or the building official has to write to tell you, ‘You know what, if you don’t do it, we’re gonna make you move out of your building.’
“I think somewhere between year 30 and 35, you need to start the process,” Haber added. “This process can take anywhere from two years to five years or longer to complete, so if you start at year 39 or 40, you’re not gonna be done until you’re at 45.”
Another problem is that reserves need to be in place to help fix problems before they become too costly. According to reservestudy.com, typical condo associations should be setting aside $60 to $150 per unit per month, or about 15 to 40 percent of assessments, toward reserves.
“I’m promoting periodic structural inspection on top of reserve study,” said Houston-based attorney Marc Markel, who represents condo associations. “Some of these repairs are very expensive and some are not.”
He said the best thing boards can do to protect themselves is find the right experts.
“If they get the counsel and they follow the advice from that group of experts, they are less likely to have issues. The ones that are more likely to have issues are the ones that say, ‘Well, if we followed all of your advice, we’d have to increase our fees by 20 percent and that wouldn’t be very popular.’
“You don’t do what’s popular,” Markel added. “You do what’s right for the building.”
When potential owners are looking to buy a condo, he said, it’s best to ask for the financial records of the organization and see what available insurance the building has in place, as well as get copies of the reserve study, any engineering reports and the city inspections that might be on file.
As for Haber, the Champlain condo collapse is personal for him. He wants to do his part to make sure something like this never happens again.
“I have business partners who have family members that are in that building and have not yet been found,” he said. “They’re holding out hope. I have friends of friends. I have a former client who they just identified in the building as having been there and deceased. It’s heart-wrenching.”
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