The process for structural inspections, also known as destructive testing, requires portions of the interior drywall to be removed so the concrete and metal rebar in the support columns can be examined.
That can easily cost $25,000 or more, according to Butera.
Erum Kistemaker, a condo law attorney based in Ormond Beach, is one of the Division of Florida Condominiums, Timeshares & Mobile Homes’ “approved educational providers.” She conducts seminars for condo board directors, members and community association managers.
One of the problems of placing the burden of maintaining condo buildings on condo associations is the complexity of the Florida Condominium Act, she said.
“How can a layperson who serves on a board for only a year know everything? The laws are so convoluted,” Kistemaker said. “Boards and associations really need to understand that hiring the appropriate experts and having the appropriate budget to hire those experts is an integral part of the entire puzzle. There’s many moving parts to having a properly maintained building.
“People buy into a condo and think it’s almost fixed-income living in terms of costs. Many owners complain if their assessments are increased year to year,” she said.
“The reality is the costs of maintaining buildings go up every year, especially as they get older. And the condominiums on the coast have a faster rate of deterioration due to the elements, including the salt air, ocean, water intrusion and rust. That’s just a fact.”
The odds are stacked against condo associations in other ways as well.
In 2006, the state Legislature voted to reduce the deadline for suing condo developers for suspected construction defects from 15 years to just 10.
“I had a case where after the 10-year repose (statute of limitations) passed, we discovered construction defects, but had no ability to sue,” said Kistemaker, managing partner of Kistemaker Business Law Group. “I believe the statute of repose should be increased to help further protect condominium owner associations.”
The Florida Condominium Act wasn’t always so hands-off when it came to inspections once control of buildings are turned over to condo associations.
In 2008, the Florida Legislature amended the Condominium Act to require buildings three floors or higher to be inspected once every five years. However, the act allowed condo associations to waive that requirement.
The Legislature removed that requirement for periodic inspections in 2010 as part of an overall rewrite of the Florida Building Code.
The Florida Condominium Act currently requires condo associations to pay for an insurance appraisal every three years to determine the replacement value of the building’s exterior and common area amenities.
But that is no substitute for a building inspection, said Dreux Isaac of Dreux Issac & Associates Insurance Appraisals in Orlando.
“It’s not an investigation,” said Isaac of the appraisals of condo buildings that he and others in his profession conduct throughout the state. “It’s not an engineering study in any sense. An appraisal to determine replacement cost is somewhat of a modified shell appraisal. The appraisal does not look at the structural condition.”
Isaac added: “I’ve looked at so many buildings over the years in coastal communities throughout the state and I can tell you, corrosion is a prevalent problem. It becomes this monster where repairs are deferred and delayed and problems continue to snowball.”
Currently only two out of the state’s 67 counties require high-rise condos to be periodically inspected for structural safety: Miami-Dade and Broward counties.
But the recertification requirements for condos in those two counties only kicks in when buildings turn 40 years of age.
The Champlain Towers South building that recently collapsed in Miami-Dade County was built in 1981. The condo association was still in the process of complying with the county’s 40-year re-certification requirements when the structure suddenly gave way.
An inspection of the building in 2018 found evidence of deterioration and recommended structural repairs that would have cost several million dollars. The condo association dragged its heels in making those repairs because of the cost, prompting its then-board president to resign in protest in 2019, according to news reports.
Miami condo attorney David Haber said there is no way repairs to Champlain Towers South could have been completed this year because they began so late.
“Even if the building had not gone down, the repairs wouldn’t have been done for at least another couple of years,” he said. “Under the current laws in Miami-Dade County, they wouldn’t have suffered a penalty if they didn’t get re-certified until year 42 (of the building).”
Gov. Ron DeSantis’ office recently issued a statement urging patience on drawing conclusions regarding the causes of the Surfside condo collapse until a full investigation can be completed. Some experts say that investigation could take as long as two years.
“Only a thorough, timely investigation can provide an adequate basis for any statewide policy change in the aftermath of this tragedy. It would be irresponsible to preemptively assume the causes of the collapse before reviewing the findings of any investigation,” according to the Aug. 4 statement from DeSantis provided by the governor’s press secretary, Christina Pushaw.
David Haber, a condo law attorney based in Miami, recently weighed in on what needs to happen in the wake of the Surfside collapse in an opinion piece published by The New York Times. The headline read: “I know all about condo living. Change is coming.”
“There could be multiple causes (for the collapse). It could be like the Challenger Space Shuttle where so many things happened all at once,” Haber said in a phone interview. “But what we DO know is that the condo association had two-and-a-half years before they passed the special assessment (to make repairs), amid a lot of rancor.”
State Rep. Anna V. Eskamani, a Democrat who represents the 47th district that includes the Orlando area, believes some state lawmakers could be hoping the Surfside collapse investigation finds enough unusual circumstances to conclude there is no need to change state laws regarding condos.
“The Legislature has a habit of deregulation, but safety is something that should be regulated,” she said. “Right now, the state’s condo laws and building codes are very much designed in favor of developers and builders to be not what is the safest method, but what’s the cheapest. That’s because developers and builders have a loud voice. They also cut a lot of checks. As a result, their opinions carry a lot of weight.”
Some state lawmakers are builders and/or developers themselves.
State Sen. Keith Perry, a Republican who represents the eighth district that includes Alachua, Putnam and Marion counties, is the owner of Perry Roofing Contractors in Gainesville.
Perry in this year’s legislative session introduced a bill allowing building inspections to be conducted virtually without a building official or inspector to be physically present on site, with the exception of “certain structural inspections.” That bill was signed into law by Gov. DeSantis on June 29.
“The bill on the virtual inspections was just making use of the technology that’s available: what can you look at where you don’t need to be in person,” said Perry. “Things that already were just being inspected visually. Certainly nothing to do with structural.”
Rusty Payton, CEO of the Florida Home Builders Association, defended the passage of the bill allowing virtual inspections.
“All that bill did was clarify and codify what was already being done regarding inspections of stuff like doors and windows,” he said. “It is not designed for structural. There’s nothing to be alarmed at with that bill.”
Payton said his association re-examined the bill to allow virtual inspections after the Surfside condo collapse, but said, “the more we looked at it, the more comfortable we got and it was signed into law.”
Neris of BBM Structural Engineers in Longwood said virtual inspections “can be an add-on, but they should be in addition to, not in place of, an in-person inspection. A virtual inspection by itself, I don’t think it’s good enough. How do you know you’re seeing the whole structure?”
“Even a small thing like a roof that’s not properly sealed, if there’s a small leak, after several years it could lead to a structural failure,” he said.
Moore agreed that the trend in the state Legislature has been towards reducing costs, regulations and legal liabilities for developers and builders.
“Often it’s to the detriment of condo residents,” he said.
Case in point: “There was a bill introduced this year that would have made it extremely difficult and costly for condo residents to sue developers for construction defects,” Moore said. “Fortunately, we were able to help defeat it.”
What should change for Florida condo safety subject to debate
Payton said his group believes it is important to wait until all the facts are in regarding the Surfside collapse before changing state laws and regulations regarding how condos.
“First, it is important to keep in mind that we do not yet know what precipitated the building’s collapse,” he said. “I expect multiple agencies encompassing both state and federal levels of government will conduct a forensic analysis. Until a report is released based on their findings, any conversation related to codes and standards is premature.
“Findings may implicate building maintenance, design flaws, code issues, poor workmanship quality or even product failure. If a code issue contributed to the building’s failure, then a secondary analysis would be needed to determine if current codes address the issue. If not, then a code change would be in order.
“This is the same process utilized by the Florida Building Commission after a major storm and allows Florida to target necessary code changes when needed.”
Haber believes there are already some things that clearly need to change in terms of state regulations for how condos are built and, equally as important, how they are maintained.
For starters: “We have to take the decision-making on life safety matters out of the hands of the volunteer condo boards and into the hands of professionals,” he said.
Building inspections should also become mandatory statewide for all oceanfront high-rise condos, “beginning somewhere between the first 10 or 20 years and every five years after that,” Haber said. “And condo boards shouldn’t get to ignore the engineers’ reports and there have to be penalties if they don’t act accordingly.”
Butera said he believes waiting 40 years to do an initial re-inspection of oceanfront high-rise condos is much too long. “It should be continual and it should be periodic throughout the life of the building,” he said.
Why some Florida buildings outlast others
If Florida’s oceanfront high-rise condos have a shelf life of only 40 to 50 years, according to Neris and other experts, why does Europe have so many buildings that have stood for thousands of years?
“In America, we build for the cheapest solution, not the best,” said Butera. “We don’t build them to last forever. We build better, cheaper, faster.”
One of the problems with trying to construct buildings as quickly as possible, Butera said, is the risk that general contractors don’t give the concrete enough time to properly cure. “That makes the concrete less strong and more prone to failure,” he said. “A lot of times, contractors will try to make up time by pouring more concrete than they should all at once.”
That problem compounds if the building is then not properly maintained because they have been turned over to condo associations whose members don’t see the value in repainting every three to five years or in being quick to make repairs.
“Even if a building is built correctly to code, if it’s not properly maintained, it can be prone to premature failure,” Butera said.
More qualified Florida building inspectors also needed
Changing the state’s laws and regulations regarding the construction and maintenance of condos would be an important step, but it won’t mean anything unless the state can also come up with funds to help counties and cities to hire more inspectors and building officials “that are either licensed architects or engineers,” said Haber.
“We need more regulators, but a building official shouldn’t be someone who just takes a test.”
Perry agreed that a thorough examination of what caused the Surfside collapse needs to be done before drawing conclusions on whether laws should be changed.
That said, “even if it’s only one condo that collapsed out of the many thousands we have in Florida, that’s still one too many,” said Perry. “Even if it’s the rarest of occasions, I believe it was a preventable accident. I think we could require periodic inspections, but when and how often do they need to take place?
“I also think the distinction needs to be made between general maintenance and safety requirements. I don’t want to be the one to tell them when they need to paint and other cosmetic things. The other distinction that needs to be made is the proximity to salt air. We need to look differently at a condo building in Orlando, for example, as opposed to one that’s in Miami Beach.”
As a structural engineer, Neris said, “I would definitely recommend a statewide requirement for (periodic) inspections versus letting it be decided locally. The problem with condo associations is their motivation is to save on costs. But long-term failures can be the result of a combination of factors that includes deterioration because of a lack of maintenance.’
Will Surfside’s ‘wake-up call’ lead to meaningful action in Florida?
Eskamani voiced her hope that the Surfside collapse will be a wake-up call that can change the thinking of both state lawmakers as well as condo residents.
“I think Surfside has already changed the public’s knowledge and acceptance about the need for proper condo maintenance and fees and what the money should go for. It would be a disgrace if the Legislature takes no action after this tragedy,” she said.
“We can not do nothing about this tragedy and the fact that it was so preventable. I think it’s clear that policies should require building inspections as opposed to leaving it as an honor system.”
State Sen. Tom Wright is a Republican in New Smyrna Beach whose district covers most of south Volusia County as well as north Brevard County.
“I am confident knowing our senators and how we operate that new state standards for condos will be developed,” he said. “I do believe in local home rule, but this is not one of those things that can be left to counties and cities to decide. The third week of September is committee week (for the state Legislature) and I expect this will be brought up then.”
William Sklar is an attorney in West Palm Beach who was recently tapped to chair the Florida Bar’s new Condominium Law & Policy on Life Safety Task Force, which was formed in the wake of the Surfside collapse.
“We’re looking at several issues including life safety issues, inspections, reserve studies and the role of building officials,” said Sklar. The task force’s goal is to present its recommendations to the state Legislature by mid-September so that potential bills can be introduced at the next legislative session in January.
Wright believes the Legislature has no choice but to address the state’s current condo regulations immediately.
“My prediction is, if we don’t do something to address this issue, prospective condo buyers in the future will ask, ‘When was this condo built?’ If the answer is that it was built in the early ’80s or before, they’ll say, ‘No, thanks,’” he said.
Perry noted that many residents of older condominiums in Florida are retirees on fixed incomes. “We can’t require them to do something they can’t afford, but we also can’t allow buildings to become unsafe. We don’t want to require things that are not necessary.”
Wright agreed that some may not be able to afford to continue living in a condo if new standards are adopted to require periodic inspections and timely maintenance and repairs.
Regardless, he said, “Safety has to be first.”