Condominium Building Repairs After Surfside
On June 24, 2021, at 1:22 a.m., the Champlain Towers South condominium located in the Miami suburb of Surfside collapsed, causing the deaths of 98 people. In that moment, life in Florida condominiums forever changed. While it may ultimately be determined that the tragedy was caused by a perfect storm of multiple factors, it seems clear that one of the reasons for the tragedy stemmed from an ongoing lack of maintenance and the inability of the association to pay for critical repairs.
This problem gave birth to new legislation that, among other things, mandates that Florida condominium associations maintain adequate funding for, and cannot choose to waive or underfund, certain “reserves” to carry out specific future anticipated repairs. Like much well-intentioned legislation, however, the new statute may be trying to solve one problem while causing another. Now many retirees and others with limited incomes are required to fund future repairs that they simply cannot afford.
This has led to several areas of conflict that existed before the Surfside tragedy but are now magnified by post-Surfside legislation; namely, unit owners locked in combat over the who, what, when, and how much of repairs to the condominium. It is typically the condominium association’s elected board of directors that directs the repair process. But what if unit owners do not agree with the timing, the chosen contractor, or the ultimate cost? As in a public corporation, unpopular decisions can be challenged through an election. But what if there is not enough time? And what about the view of the minority of unit owners whose candidates in an election have not prevailed? These issues create scenarios where disagreements can end up in court.
Disagreements between unit owners and the board of directors in a fight over building repairs are very often raised via a motion for temporary injunction. At this type of hearing, which is becoming increasingly common, the court will hear testimony of expert witnesses who will opine on what is necessary to ensure building safety. While unit owners looking to address repairs in a more cost-effective manner may be well intentioned, the likelihood that an impartial judge will choose a less expensive repair option seems remote. Because there has already been one tragedy, a careful Florida jurist may wish to take the conservative approach and err on the side of caution in these cases. Thus, Florida condominium unit owners are in a predicament where cheaper is almost never better.
When repairs become simply too expensive to fund, some Florida condominiums may opt to terminate the condominium and sell it to a developer with more capital to make necessary repairs or create an entirely new development. Florida law allows for condominiums to be terminated by a vote of 80 percent of unit owners if more than 5 percent do not object to the termination. However, the condominium’s declaration—which is essentially a publicly recorded contract binding the unit owners by virtue of their ownership of property within the condominium—can provide for different thresholds to effectuate a termination, which may override the termination statute in some circumstances.
Regardless of the vote needed for a particular condominium, what often happens when one group of unit owners wishes to terminate the condominium and sell, but other unit owners do not? More litigation.
This time, in addition to an injunction claim raised in the lawsuit, the complaint may also include a count for a declaratory judgment asking the court to interpret the terms of the applicable statutes or the condominium declaration, as well as to determine whether a vote made by the board or by the unit owners complies with the applicable provisions of the declaration or statute. So much for piña coladas on the beach.
The Surfside tragedy and resulting legislation have created an atmosphere ripe for disputes over repairs and the ongoing viability of the condominium form of ownership. However, there are, of course, other issues also inspiring ongoing battles within the condominium, many of which pre-date Surfside and will persist well into the future as part of the natural environment of community living.
Association v. Unit Owner
Another fertile ground for condominium litigation is disagreements between the association (acting through its board of directors) and one or more unit owners. Condominium living does require a certain level of tolerance for the peccadilloes of your neighbors. But what happens when your neighbor’s quirks become more serious and create a nuisance or even a safety issue?
In one condominium case our firm recently handled, a unit owner with mental health challenges established a routine of frightening association employees and residents in the garage, elevators, and hallways. These assaults were often followed up with verbal abuse. When the association’s board of directors learned that the unit owner was brandishing a gun on his balcony, threatening on-site staff, and spewing expletives at residents, they knew it was time to take legal action.
The lawyer’s task in a case like this is not only to establish the likelihood of “irreparable injury” at a hearing on a motion for temporary injunction but also to work with established professionals to determine whether the problem owner is mentally ill or simply cantankerous. Then the case may become not only a civil lawsuit but also a quasi-criminal matter and, in some cases, a quasi-guardianship proceeding. After the issuance of an injunction order, the challenge for the lawyer and the court also involves how to measure and implement coercive fines to enforce compliance. A condominium does not necessarily have the right to demand a “Baker Act” type of commitment, which remains in effect for only a limited time anyway, after which the person will presumably return to the condominium property where the person’s home is located. The police may help, but most often their role is limited to crimes that have already been committed, not preventing crimes that have only been threatened or that may arise in the future.
Finally, there are issues of claims for attorney fees and costs to consider in cases like this. While necessary, litigation in these situations can be expensive, and condominium associations are not-for-profit corporations funded through assessments paid by the unit owners, who likely were not planning to budget for a costly lawsuit. While an association prevailing in its lawsuit against a unit owner may be entitled to an award of reasonable attorney fees, collection of that award can become even more complicated when you consider that most Florida real property owners are protected by Florida homestead law, which makes their units exempt from creditor’s process. That being said, when it comes to the condominium’s safety and security, sometimes litigation (with its costs) is unavoidable.
Association v. Developer and Contractors
Another of the most prevalent types of condominium-related litigation is the post-turnover association versus the building’s developer and contractor in a construction defect lawsuit. Once governance of the association is turned over by the developer to the unit owners, it is time for those unit owners and their duly elected board of directors to dig deep into the condominium’s construction and, together with the assistance of trained professionals, evaluate where the developer and its contractors went wrong in the design and construction process that requires redress. Construction lawsuits brought by condominium associations against developers, contractors, and other construction parties are typically raised under Chapter 558 of the Florida Statutes. These actions identify and highlight a panoply of problems for which the association can seek compensation, running the gamut from improper design, to deficient construction, to use of defective materials. And when it comes to the structure of the condominium building, suffice it to say that, post-Surfside, the world of condominium association board members, unit owners, engineers, contractors, and developers is certainly highly sensitive to these issues.
Under Florida law, condominium associations only have a certain amount of time to bring lawsuits for design and construction defect claims—somewhere between four and seven years of certain triggering events, which vary from building to building. Most associations with knowledgeable management and legal counsel do not wait that long to invoke the Chapter 558 process of seeking repairs—ideally beginning shortly after turnover.
Florida law requires that developers and contractors be given an opportunity to correct any identified defects before litigation commences, but it is exceedingly rare that these cases are completely resolved without litigation. Now more than ever, associations must be cognizant of the legal deadlines and time frames to pursue their construction-related claims—including post-turnover as well as after completion of other projects at the property where design or construction defects may be present.
Looking Ahead
The good news is that the Florida beaches and oceans have not changed—they remain as stunning as they have always been. Florida is still one of the most popular states in the United States for retirees and others seeking to flee high taxes and cold weather. Nonetheless, as in any center of commerce, where substantial money is required to buy into a sought-after lifestyle, Florida condominiums have become a hotbed of litigation. And despite the perception of the general public, perhaps gained from the media and popular television shows, litigation in these areas does serve an important purpose because it often helps to remedy problems where legislation and negotiation may not be sufficient.
Florida is still a great place to move to and live, and new condominium developments continue to pop up throughout the state. But a key difference now is that it also pays to know a good lawyer who knows the intricacies and nuances involved in community association law and litigation.