Miami Beach Condo Collapse: The Association’s Non-Delegable Duty for Maintenance

As an Attorney that fights for the rights of individuals who own Condominiums in Florida, I am deeply saddened by the tremendous loss to our neighbors in Surfside.  The loss ofNon-Delegable Duty life and property is truly devastating to these residents and their families.    Our thoughts and prayers continue to go out to them.  As many of you already know, on June 24, the 12-story Miami Beach oceanfront condo tower collapsed, resulting in at least 18 fatalities and 145 people declared missing.

Although the cause of this horrific tragedy is still under investigation, reports indicate that the 40-year-old condominium, Champlain Towers South in Surfside, was in need of serious repairs — according to a 2018 engineer’s report, the building had structural issues costing millions of dollars to remedy. Despite the condo association having $800,000 in reserves, the allegedly dilapidated roof, flawed pool deck, and deteriorating support columns would have resulted in a $15 million expenditure.

Understandably, many unit owners may be concerned about the structural integrity of their own condo buildings in light of the recent catastrophe. It’s important to be aware that a condo association has a non-delegable duty to adequately maintain the “common elements” of the building by law. Critically, even if a licensed roofer or contractor were hired to make the necessary repairs, the association would not be shielded from liability to unit owners if the building was negligently maintained.

What is a Condo Association’s Non-Delegable Duty?

According to Florida Statutes Chapter 718, condo associations have a non-delegable duty to maintain the “common elements” of the building — as defined by the statute, these are the areas that are separate and apart from the units. Common elements can include easements that go through the units for conduits, ducts, wiring, plumbing, and other utilities, as well as those that contribute to the support of a building. Property and installations necessary to furnish utilities to more than one unit are also considered common elements.

What is the 40-Year Recertification Process for Florida Condos?

In Miami-Dade County and Broward County, a 40-year recertification process generally applies to all buildings that are not single-family homes — including condo buildings such as the one involved in the Miami Beach condo collapse. Forty years from the date of the building’s original certificate of occupancy, city code compliance officials will issue a Notice of Required Inspection, mandating that the property owner have the structure thoroughly inspected within 90 days.

Effectively, the 40-year recertification process is a type of safety inspection. Recertification inspections must be performed by licensed professionals such as architects and engineers who will determine the building’s general structural and electrical conditions. Specifically, the architect or engineer will evaluate whether the following elements of the building are structurally safe:

  • Foundation
  • Floor and roof system
  • Masonry bearing walls
  • Steel framing system
  • Windows
  • Wood frame structures
  • Loading conditions
  • Branch circuits
  • Conduit raceways
  • Emergency lighting

After the inspection, the engineer or architect will prepare a report regarding the structural integrity of the building. Depending upon the findings of the inspection, the property may be re-certified for an additional ten years. However, if issues are found, the owner will be advised that improvements must be made prior to granting recertification. If repairs are necessary, the Association will have a certain period of time to ensure they are carried out.

It’s not uncommon for the concrete on buildings along Florida’s coastline that are constantly exposed to saltwater and air to begin spalling. Significantly, an architect or engineer will also make recommendations during the 40-year recertification process concerning whether to perform a concrete restoration project on the building.

What Rights Do Condo Unit Owners Have to Request Records from the Association?

Many people who live in high-rise condos in South Florida may be wondering whether they should be concerned about the condition of their building after the Champlain Towers tragedy. Under Section 718.111(12) of the Florida Statutes, unit owners have a right to access the condo association’s official records. This includes not only the bylaws and articles of incorporation, but also developer plans, insurance policies, financial records, and inspection reports.

By obtaining records and documentation from the condo association, condo unit owners can learn the age of the building and when the last inspection was performed. They can also find out what type of renovations are planned for the building in the future and how much money is in the reserve fund to make the repairs.  These requests for access to Association records can be tricky as there are certain policies and procedures that must be followed but are not stated in the Condominium Act or the Governing Documents.

Condo unit owners have the legal right to have their questions answered by the condo board according to Section 718.112(2)(a) of the Florida Statutes. This provision provides for a statutory inquiry process by which unit owners can make a written inquiry to the board by certified mail. While the scope of the inquiries is not specified in the statute, the board is typically required to respond to an inquiry within 30 days of receipt. Failure to do so can result in the board being precluded from recovering attorneys’ fees or court costs from any litigation that may result.

Who is Liable for Negligence Maintenance of Premises?

Owners are usually responsible for the conditions of their own units, with few exceptions — such as problems involving defects that affect the common elements of the building. However, if a structural issue with the building caused damage to the units, several parties could be held liable, depending on the facts and circumstances of the accident. For example, an architect, engineer, or builder may be to blame if there was a structural defect or flaw in the design of the building.

Regardless of the parties that may be responsible, a condo association has a fiduciary duty to act in the best interests of the unit owners. Failure to promptly repair safety issues, correct defective conditions, or exercise due care can result in liability being imposed on a condo association for damages that have arisen as a result.

Additionally, while owners are typically permitted to do certain work on their units — as long as they seek written approval from the board and obtain the necessary permits — it’s essential to ensure that only licensed and insured contractors perform these renovations. Notably, a unit owner could potentially be held liable for any damage caused to a neighboring unit or the common elements as a result of the work.

Contact an Experienced Florida Condominium Attorney

If you have questions about the safety of the structure of your condominium building, it’s vital to be aware that you have the right to have them answered by the association. A knowledgeable condominium attorney can help guide you through the Records Inspection and Statutory Inquiry Process and assist you with preparing a skillfully drafted letter to ensure your concerns are properly addressed. The Law Offices of Herb M. Milgrim, P.A. is committed to representing individuals who own condos, units that are part of homeowners’ associations, and co-ops for a wide variety of housing-related matters.

We serve the needs of clients throughout Florida and offer skillful counsel to resolve disputes in Broward, Dade, and Palm Beach Counties, as well as Miami, Naples, Brickell, Hollywood, Davie, Pembroke Pines, Hallandale, Sunny Isles, Aventura, North Miami, Boca Raton, and West Palm Beach. We exclusively represent owners and never the condo associations or their boards. To schedule a consultation, we welcome you to contact us at (954) 966-3909.

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