By Donna DiMaggio Berger, Esq. / Published November 2016
The sprinkler opt-out law is not new. It has been in play since 2004, with the sprinkler opt-out rights having been last modified back in 2010. The issue of which buildings should opt out of the sprinkler retrofit prior to the December 31, 2016, deadline was already a complicated analysis but has recently become more complicated as a result of a lot of misinformation being put out there by well-intentioned but uninformed individuals, as well as some communities looking to rely on free advice rather than consulting their association counsel. In addition to discussing with high-rises what the implications of taking or not taking an opt-out vote will be, a new wrinkle arose recently pertaining to whether or not low- and mid-rise buildings should also consider taking a membership vote to opt out of sprinkler systems.
The Division of Florida Condominiums, Timeshares, and Mobile Homes initially took the position as quoted in a newspaper article that the ability of all buildings, regardless of height, to opt out of sprinkler systems under Chapters 718 and 719 of the Florida Statutes must mean that they must do so or be forced to retrofit. Thanks to the efforts of the Florida Bar’s Condominium Committee and members of Becker & Poliakoff, the Division of Florida Condominiums has already backed off that stance. Thus, there really is no longer any need to have a dialogue with the Division on this topic as the Division does not have the authority to interpret or enforce the Life Safety Code. Any attempts to have the Division weigh in further on this topic will likely be denied due to lack of jurisdiction.
The decision to opt out for low- and mid-rise buildings requires a conversation with knowledgeable association counsel. I have some of my low- and mid-rise clients who are taking the opt-out vote and others who are not.
I have discussed the preventative value of an opt-out vote for non-high-rises; however, there are disadvantages to taking the vote as well, including the fact that post-vote notice requirements must be followed, which includes the possibly chilling impact on sales and rentals when owners must notify all future potential purchasers and potential renters about the opt-out vote.
When I have this discussion with my low- and mid-rise clients, we include these factors:
As you can see from the foregoing, this puzzle is only going to be solved by relying on the advice of experienced counsel familiar with your particular situation and not by relying on free blogs and newsletters.
Donna DiMaggio Berger, Esq.
Becker & Poliakoff
Donna DiMaggio Berger is a shareholder at the community association law firm of Becker & Poliakoff and has represented all types of shared ownership communities throughout Florida for more than two decades. She is the author of a popular association industry blog www.communityassociationlawblog.com. She can be reached at (954) 364-6031 or via e-mail at firstname.lastname@example.org.