Residential Condominium Associations Must Commence Fire Safety Retrofitting Process or Opt Out by December 31, 2016

February 22nd, 2016

Posted in Business & Corporate Law

In communities where residents live in close proximity to one another, such as in a condominium building in which unit owners may share common walls, floors, and ceilings, safety in the event of fire or other emergency is an important aspect that should be carefully considered. In such communities, the Florida legislature, the State Fire Marshal, and local governing authorities may require the installation of certain fire and life safety equipment in an effort to protect residents in the event of a fire or other emergency. In some circumstances, such regulation may require “retrofitting,” or the installation of additional equipment and safety devices to existing structures, even if the equipment was not required at the time the building was originally constructed. Because the installation of additional equipment could require a community association to spend a significant amount of money to bring a building into compliance with any existing regulations, both the safety and financial aspects of any retrofitting that may be required should be carefully analyzed.

The Florida Fire Prevention Code, which incorporates National Fire Protection Association standards, and Section 718.112(2)(l) of the Florida Statutes provide that certain existing “high-rise buildings” and “apartments” must be equipped with an approved, supervised automatic sprinkler system or an engineered life safety system approved by the fire official by no later than January 1, 2020. By December 31, 2016, a residential condominium association that is not in compliance with the requirements for a fire sprinkler system must initiate an application for a building permit for any required installations demonstrating that the association will become compliant by December 31, 2019.

As you might imagine, many older condominium buildings may be required to undergo substantial retrofitting at a substantial cost to bring it into compliance with current regulations. Also, because local governing bodies (counties and municipalities) generally have the authority to regulate fire and life safety, the specific equipment that must be installed or measures that must be undertaken may differ depending on the location of the condominium building. In addition, the cost associated with any fire and life safety measures that may be required would generally be borne proportionately by the association’s members, and many associations may not have adequate reserves to fund the project. Of course, to the extent that the association does not have sufficient reserves to fund the project, any shortfall would likely require a special assessment against the members or a loan. However, if your community is already in compliance with any applicable fire and life safety regulations, it should obtain a certificate of compliance from a licensed electrical contractor, which should be maintained in the association’s Official Records.

Because many residential associations do not have sufficient reserves to fund a retrofitting project, some have chosen to opt out or “forego” any retrofitting that may otherwise be required. Section 718.112(2)(l) of the Florida Statutes permits the members of an association to vote to forego any retrofitting that may otherwise be required by any applicable governing authority. The vote may be obtained at duly-noticed membership meeting or by execution of written consents and requires a majority of all voting interests to pass. If a majority of all voting interests agree to opt out of retrofitting, a certificate must be recorded in the official public records of the county in which the condominium is located. Thereafter, the association must report the results of the opt out vote to the Division of Florida Condominiums, Timeshares, and Mobile Homes and a copy of the recorded certificate must be furnished by each unit owner to any prospective unit purchasers and tenants.

As stated above, the decision of whether to retrofit the condominium or opt out requires careful consideration of the safety and financial aspects associated with the project. Analysis of those aspects often requires the assistance of an engineer and an experienced community association law attorney. In any event, the decision making process of whether to undergo retrofitting or opt out should be commenced quickly because the association must either vote to forego retrofitting or initiate a building application for any necessary installations by December 31, 2016. Accordingly, residential condominium associations are encouraged to contact legal counsel to assist with the retrofitting or opt out process.

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