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LEGISLATIVE UPDATE
By
Eric Glazer, Esq.
Published February 7, 2022
The Florida Legislature is in full swing.
Each year lots of bills get filed, but few make it to the finish
line and become law. Here’s an update on two bills that are
moving towards becoming law:
SB 394: This is my mandatory
education bill, requiring directors to get certified by
attending a course. Senator Anna Maria Rodriguez introduced the
bill at The Regulated Industries Committee In Florida’s Senate
and the Committee passed it by a vote of 8 to zero. Now it goes
to the Community Affairs Sub Committee for their approval. And
on the House side, our companion bill HB 547 was just referred
to the Civil Justice and Property Right Sub Committee and it
needs to get set down for a hearing there. And that bill was
filed by Representative David Borrerro. So, we’re moving ahead,
we’re getting closer to mandatory education for Board members,
but we are not there yet?
Really only one other bill is gaining
traction and that would be Senate Bill 7042. This one is
produced in light of the Surfside tragedy. And there is a lot in
that bill. I will try to summarize if possible but it’s a 76
page bill.
Here we go:
a) You don’t reserve just for roof, pavement and painting -----
now you have to reserve for Roof, Structure, Fireproofing and
fire protection systems, Elevators. Heating and cooling systems.
Plumbing. Electrical systems. Swimming pool or spa and
equipment. Seawalls. Pavement and parking areas. Drainage
systems. Painting. Irrigation systems.
b) A reserve study would have to be done once every three years
for buildings 3 stories or more in height.
c) The members of the association may vote to waive reserve
contributions or reduce reserve funding if the association’s
reserve obligations are funded consistent with the reserve study
currently in effect or if the association provides an
alternative funding method for the association’s reserve
obligations. (For example, borrowing from a bank)
d) It makes it more difficult for the developer to waive reserve
funding;
e) Reserve funds that are used for a purpose other than
authorized reserve expenditures must be reinstated in the
reserve account or accounts within 12 months after the
expenditure.
f) If the association is required to perform a reserve study and
the budget of the association does not fund the association’s
reserve obligations consistent with the reserve study currently
the financial report must also contain the following statement
in conspicuous type: THE BOARD OF ADMINISTRATION FOR THIS
ASSOCIATION HAS FAILED TO SATISFY THE ASSOCIATION’S RESERVE
FUNDING OBLIGATIONS UNDER SECTION 718.112(2)(f), FLORIDA
STATUTES. THE BUDGET OF THE ASSOCIATION DOES NOT PROVIDE FOR
FULLY FUNDED RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES AND
DEFERRED MAINTENANCE CONSISTENT WITH THE ASSOCIATION’S RESERVE
STUDY. FAILURE TO FUND RESERVES CONSISTENT WITH THE
ASSOCIATION’S RESERVE STUDY MAY RESULT IN UNANTICIPATED SPECIAL
ASSESSMENTS REGARDING THOSE ITEMS.
g) A residential condominium building that is three stories or
more in height must have a milestone inspection performed by
December 31 of the year in which the building reaches 30 years
of age, (STATEWIDE) based on the date the certificate of
occupancy was issued, and every 10 years thereafter.
h) A residential condominium building that is three stories or
more in height and is located within 3 miles of a coastline must
have a milestone inspection by December 31 of the year in which
the building reaches 20 years of age, based on the date the
certificate of occupancy was issued, and every 7 years
thereafter.
A Milestone Inspection is a structural
inspection of a building by a licensed architect or engineer
authorized to practice in this state for the purposes of
attesting to the life safety and adequacy of the structural
components of the building and, to the extent reasonably
possible, determining the general structural condition of the
building as it affects the safety of such building.
But………………A milestone inspection consists of
two phases: (a) For phase one a licensed architect or engineer
authorized to practice in this state shall perform a visual
examination of all areas of a building and provide a qualitative
assessment of the structural conditions of the building. Surface
imperfections, such as cracks, distortion, sagging, excessive
deflections, significant misalignment, signs of leakage, or
peeling of finishes, must be critically viewed as possible signs
of structural distress. If the architect or engineer finds no
signs of structural distress to any building components under
visual examination, phase two of the inspection, is not
required.
Phase two of the milestone inspection must be
performed if any structural distress is identified during phase
one. The inspector in charge of a phase two inspection must be a
licensed Florida engineer or licensed architect who has a
minimum of 5 years of experience designing the primary
structural components of buildings and a minimum of 5 years of
experience inspecting structural components of existing
buildings of a similar size, scope, and type of construction. A
phase two inspection may involve destructive or nondestructive
testing at the inspector’s direction. The inspection may be as
extensive or as limited as necessary to fully assess damaged
areas of the building in order to confirm that the building is
safe for its intended use or to recommend a program for fully
assessing and repairing damaged portions of the building.
i) The Phase One and Phase 2 reports must be given to the local
Building Official who can prescribe timelines for the repairs,
and the unit owners.
j) The necessary maintenance, repair, or replacement of
association property is not a material alteration or substantial
addition requiring unit owner approval and The association is
not liable for alternative housing costs, lost rent, or other
expenses if a resident must vacate a unit or is denied access to
a common element for necessary maintenance, repair, or
replacement of association property.
k) Regardless of what the governing docs say: the board may
adopt a special assessment or borrow money for the necessary
maintenance, repair, or replacement of association property.
l) If the association has voted to waive reserves or if the
reserve accounts are not being properly funded, this must be
disclosed on estoppel certificates.
m) An owner may take the board to arbitration for failing to
comply with these requirements.
Bottom line, it’s time to pony up some
money to pay for all these inspectors and to pay to fix the
damages they find.
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About
HOA & Condo Blog
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Eric Glazer graduated
from the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for three decades and is the owner of
Glazer and Sachs, P.A. a five attorney law firm with
offices in Fort Lauderdale and Orlando.
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Eric is Board Certified by The Florida Bar in
Condominium and Planned Development Law.
Since 2009, Eric has been the host of Condo Craze
and HOAs, a weekly one hour radio show that airs at 11:00 a.m.
each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
Eric is the first attorney in the State of
Florida that designed a course that certifies condominium and
HOA residents as eligible to serve on a Board of Directors and
has now certified more than 20,000 Floridians all across the
state. He is certified as a Circuit Court Mediator by The
Florida Supreme Court and has mediated dozens of disputes
between associations and unit owners. Eric also devotes
significant time to advancing legislation in the best interest
of Florida community association members.
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