By Laura M. Manning-Hudson / Published September 2021
The collapse of the Champlain Towers South condominium has been a human tragedy of unimaginable proportions, and the unspeakable grief and horror of its aftermath have been shared deeply by our law firm. Our attorneys and professionals extend our most heartfelt and very deepest condolences to all those who have been affected.
This firm has made helping condominium communities contend with construction defects a particular focus. Reforms should be considered that would require engineers to promptly report certain serious conditions to local building departments whenever they find them. This would take discretion out of the equation and immediately involve building inspections, permits being issued, and repairs being completed. The firm suggests there should also be new federal/state government aid and/or low interest, federally backed loans for condominium associations that now engage in major structural repairs.
The firm’s attorneys are also concerned by the great deal of misinformation that is currently circulating over the legal liabilities of association board members. It should be noted that lawsuits against a condominium association are ultimately against the building’s insurer and possibly all of the unit owners, as owners can be held responsible for liabilities incurred by their association.
The firm has been reaching out to clients to remind them of the importance of prioritizing an engineer’s findings and transmitting the information to new board members and property managers, focusing on structural issues over aesthetics and properly funding reserve accounts for any necessary repairs.
The firm’s attorneys have been sharing insights on these and other emerging issues with major media outlets as well as with some of Florida’s lawmakers and policymakers. In the Sun Sentinel June 25 article titled “How to Know If Your Condo Tower Is Safe,” fellow firm shareholders Stuart Sobel and Roberto Blanch address this issue:
…Stuart Sobel, a construction lawyer who also works at Siegfried Rivera, isn’t certain an inspection would have exposed the problem that led to the collapse in Surfside.
“Without knowing what caused this collapse, it’s impossible to say if they had done the certification last year, or five years ago, or 10 years ago that it could have been avoided,” he said. “We just don’t know how it came about.”
Can owners, buyers, and tenants see the inspection results?
Once the inspection report is filed with the county, it becomes a public record, [Roberto] Blanch said. State condo law allows unit owners to obtain the reports from the association.
“A tenant or a prospective purchaser would be able to review that record as a member of the public,” he said. . .
…Blanch said those [40-year recertification] concerns could be alleviated if owners were “proactive” about troubleshooting problems and fixing them. . .
(The complete article is available on the Sun Sentinel’s website at https://www.sun-sentinel.com/local/miami-dade/fl-ne-high-rise-safety-south-florida-20210624-ete6xzqugzdpvgd75mqlzunpoi-story.html.)
With the first wrongful death lawsuit filed just a couple of days after the collapse, Sobel points out (originally printed in the June 25 Daily Business Review) that at the heart of a lawsuit is the finding of fault—omissions or commissions which associations should be proactive in avoiding even beyond the minimum requirements of the law. The article states
…Not everyone agrees the timing is right for a suit like this.
Construction attorney Stuart Sobel of Siegfried Rivera in Coral Gables says attorneys should slow down before rushing to file suit over a collapsed building. Sobel represented Miami Dade College in securing a $33.5 million settlement over the collapse of its parking garage while it was under construction at the school’s West Campus in 2012.
“You have a long statute of limitations. You don’t have to bring a law-suit tomorrow. In my view, you’re doing it for publicity to get your name out there and get more business,” Sobel said. “At its core, you have a burden of proof. You can’t just point your finger at somebody. You have to be able to prove that that person did something wrong or failed to do something right. There’s just no ability for anybody filing suits today to say that that’s the case.”
…Thursday’s catastrophe shows it’s crucial for condo associations to take the 40-year recertification process seriously, according to Sobel, who suggests making changes as soon as an engineer comes back with recommendations. Sobel said it might also be in an association’s best interest to do a self-assessment.
“The fact that the law requires it after 40 years does not prevent a condominium association from self-assessing and making sure the building is safe,” Sobel said. “Are there cracks that either merit investigation or are worrisome? If there are, don’t ignore them.”…
(The complete article is available on the Daily Business Review’s website [registration required] at https://www.law.com/dailybusinessreview/2021/06/25/unspeakable-horror-south-florida-lawyer-delivers-first-blow-to-condo-association-over-champlain-towers-collapse/.)
As the operations of community associations come under scrutiny, the June 30 Daily Business Review featured an article in its online edition titled “Are Homeowners Associations the Bad Guy or ‘Ill-Equipped’ Volunteers?” This stated in part
…Attorney Gary Mars of the Siegfried Rivera law firm in Coral Gables is board certified as an expert in condo and community association law, and has helped associations contend with contractors and engineers over construction defaults. Although Mars said he respects the people who are filing the lawsuits, he agrees it’s too soon to tell who is at fault.
Mars says the condominium association board members, who are mostly volunteers, need to know their buildings. He says he will often ask sitting managers about their historical reporting, only to find they have no idea what kind of information that entails. But it’s information that could give a lot of insight into the health of a structure.
“There should be engineering evaluations that have occurred over time … They’ve been shelved and they’re not being looked at, but they’re a great snap-shot as to the history of the property and, as things continue on through the lifespan of the property, you build off of that just like you would medical records for somebody’s person,” Mars said. “That doesn’t happen most of the time. You replace managers, you replace board members in condos, and there’s really not a great source from a historical standpoint moving information to the current decision-makers.”
One challenge a lot of associations face is balancing the needs of the condominium from a financial standpoint. At Champlain Towers South, many condo owners had just paid special assessment fees to begin building repairs.
“A modest building with big financial needs is really in a dilemma,” Mars said. “How do we raise the capital to do the repairs? Sometimes the repairs can be in the millions of dollars and you have very modest unit ownership in regards to income levels. How do you balance that all out?”
There isn’t a great solution, according to Mars, but if possible, retaining a large reserve amount can help cover the cost of essential repairs.
“That may be an area where legislation may have some impact,” Mars said. “There may be some abilities to have different types of loans avail-able that may have some type of government backing that could provide some of these associations with the opportunity of acquiring funds to do this type of extensive, deferred maintenance.”. . .
(The complete article is available on the newspaper’s website at https://www.law.com/2021/06/30/are-homeowners-associations-the-bad-guy-or-ill-equipped-volunteers/.)
Mars also discusses another suggested reform in a July 11 article in the Miami Herald titled “Fall of Surfside Condo Unleashes Frenzy of Enforcement Action by Building Departments.” The article concludes
….Gary Mars, an attorney at the Siegfried Rivera law firm who specializes in community associations and construction defect law, said part of the problem is that too much onus is placed on condo boards, which are often made up of volunteers with no experience in engineering or repairs.
“It’s a high burden to ask volunteer board members to maneuver through certain construction concerns and structural problems,” Mars said. “If an engineer sees a beam is impacted because the roof is failing, there should be a certain degree of notification required by an engineer to that municipality. That would invoke some kind of process that provides a time frame to get things done. The municipality has to be involved with these issues. It can’t linger with the board members.”. . .
(The complete article is available on the Herald’s website at https://www.miamiherald.com/news/local/community/miami-dade/miami-beach/article252627423.html.)
In the weeks and months to come, the firm’s community association attorneys will continue to work with our clients as well as extend outreach to state and local lawmakers and policymakers to share our insights and recommendations.
Laura M. Manning-Hudson
Partner, Siegfried Rivera
Partner Laura M. Manning-Hudson with the South Florida law firm of Siegfried Rivera is board certified in condominium law by the Florida Bar and has focused on representing community associations since 1998. She is based at the firm’s office in West Palm Beach and is a regular contributor to its community association law blog, www.FloridaHOALawyerBlog.com. The firm represents more than 800 community associations, and it also maintains offices in Miami-Dade and Broward counties. For more information, visit www.SiegfriedRivera.com or call (561) 296-5444.