Weathering the Storm

New Legislation Offers Mitigation Assistance to Florida Condominiums

By Jonathan S. Goldstein and Natalie Alonso / Published June 2024

Every year between the months of June and November, residents all over the Sunshine State brace themselves for hurricane season. Florida condominium owners have recently been left with sticker shock by high property insurance premiums and have thus far been left out of certain mitigation programs providing inspections and grants previously available to single-family homeowners. However, with the passage of HB 1029, this type of government mitigation assistance has been extended to Florida condominiums that manage to qualify for its benefits. 

     Beginning July 1, 2024, eligible condominium associations across Florida and within 15 miles inward of the coastline will be able to participate in the My Safe Florida Condominium Pilot Program (the MSFCP Program). The MSFCP Program mimics the My Safe Florida Home Program, which was established in 2006 within the Department of Financial Services (the Department) to perform mitigation inspections of residential properties and provide mitigation grants to eligible applicants. The new program allows eligible condominium associations to apply for hurricane mitigation inspections and grants towards the installation of improvements that alleviate risk, such as impact windows and roof waterproofing, for example, to help associations avoid potential structural damage.

     While the program’s inspections will be relatively straightforward for eligible associations to obtain, obtaining a grant for improvements is another matter because the approval requirements depend on the nature of improvements sought. Since funding and availability are not a given and are dependent on the level of appropriations to the program, associations should be strategic in their attempt to partake in the benefits.

Hurricane Mitigation Inspections—Requirements and Applications

     The program enables condominium associations to undergo hurricane mitigation inspections provided at the program’s expense. At a minimum, the inspections must include (1) a complete inspection of the property and a subsequent report that identifies and summarizes recommended improvements that the association may take to mitigate hurricane damage; (2) a range of cost estimates regarding the recommended mitigation improvements; and, (3) information regarding estimated insurance premium discounts, based upon existing mitigation features and the recommended improvements identified.

     As part of the inspection application, the president of the board must submit a signed or electronically verified statement confirming that the association has only submitted one application for each property that the association operates or maintains. If an inspection application lacks certain information, the Department can ask an applicant for additional information. If the Department does not receive a response from the association regarding any apparent errors or omissions in the application within 60 days, the application is deemed withdrawn.

     To facilitate the program, the Department is authorized to contract with wind certification entities to provide hurricane mitigation inspections. The legislation indicates mandatory qualifications and other criteria in order for a wind certification entity to qualify for selection by the Department. These criteria include, without limitation, professional licensing qualifications; use of inspectors who have undergone drug testing, background screening, and fingerprinting; and, a quality assurance program including a reinspection component.

Mitigation Grants

     Once the inspection process is over, eligible associations can receive financial grants to make improvements based on the recommendations from the hurricane mitigation inspection reports. Generally, for every $1.00 that an association spends, the state will spend $2.00. The association cannot use a mitigation grant to implement the same type of improvements previously installed or pay a deductible for pending insurance claims for property damage for which the grant is being received.

     If recommended by a hurricane mitigation inspection report, grants may be used for the following improvements (limited to 50 percent of the cost of a project and a maximum of $175,000 per association):

• Opening protection, including exterior doors and garage doors;
• Reinforcing roof-to-wall connections;
• Improving the strength of roof-deck attachments; and,
• Secondary water resistance for a roof.

     There are, however, specific allocation requirements for both roofing and opening protection projects. Roofing projects will be funded at $11.00 per square foot times the square feet of the replacement roof and are capped at $1,000 per unit. The pilot program will provide a maximum contribution of 50 percent of the project. Opening protection projects, on the other hand, have a maximum contribution of $750 per window or door replacement (not to exceed $1,500 per unit) and a maximum contribution of 50 percent of the project.

     In order to apply for a mitigation grant, an association must include the following information:

• A signed or electronically verified statement made under penalty of perjury by the president of the board of directors that the association has submitted only a single application for each property that the association operates or maintains;
• A notarized statement from the president of the board containing the name and license number of each contractor that the association intends to use for the mitigation project; and,
• A notarized statement from the president of the board that commits to the Department that the association will complete the mitigation improvements.
• If an application lacks certain information, the Department can ask an applicant for additional information. If the Department does not receive a response from the association regarding any apparent errors or omissions in the application within 60 days, the application is deemed withdrawn.

     If an association is awarded a grant, they must complete the entire mitigation project within one year after receiving grant approval in order to receive the final grant award. In addition, the association must agree to make the property available for a final inspection once the mitigation project is complete to ensure compliance with the MSFCP Program or the Florida Building Code requirements.

     If improvements to protect the property already comply with the building code that was applicable at the time it was installed, the association may only use a mitigation grant to install improvements that (1) comply with or exceed the applicable code in effect when the association applied for the grant; and, (2) provide more hurricane protection than the association previously installed.

     Lastly, an association is allowed to select its own contractors to complete the mitigation project as long as each contractor meets all legal qualifications, certifications, or licensing requirements. In addition, the mitigation project must be performed by licensed contractors who have secured all required local permits necessary for the project.

Eligibility for Inspections or Grants

     In order to apply for a grant or inspection under the program, an association must (1) receive approval of a majority vote of the board of directors or total voting interest of the association and (2) provide mandatory disclosures to all unit owners regarding the pilot program. While most associations would prefer to go the route of board approval given the relative ease with which a board can approve the application versus the difficulty of obtaining a membership vote, voting is only allowed to take place at either an annual budget meeting or at a unit owner meeting that is called for the purpose of the vote, creating a possible timing issue depending on the timing of the annual budget meeting.

     Before the vote can take place, however, the association is required to provide unit owners with a clear disclosure of the MSFCP Program using a form created by the Department. In addition, the president and treasurer of the board must sign the disclosure form and indicate that a copy of the form was provided to each unit owner of the association. Following signature by the president and treasurer, the association must maintain the signed disclosure form as part of the official records of the association. Within 14 days after an affirmative vote, the association must provide all unit owners with written notice of the decision to participate in the MSFCP Program. Written notice must be provided in the same official manner that is required under Section 718.112(2)(d), Florida Statutes, (mail, hand delivery, and/or email with consent from the owner to email as official notice).

     If an association decides to apply for a grant for mitigation improvements to one or more of the units within the condominium, the association is not only required to receive approval from a majority of the board or total voting interest of the association but must also receive a unanimous vote of all unit owners within the structure or building that is subject to the mitigation grant. Notably, this unanimous vote requirement ONLY applies to improvements to units, as opposed to common elements, which will discourage improvements to windows and doors that are part of a unit (especially in high rises where unanimous approval is impractical if not impossible).

     Unit owners are only allowed to participate through a mitigation grant by the association. They are not allowed to individually apply or participate in the program.

     Although the program won’t become effective until July 1, 2024, associations and managers should check with legal counsel regarding these changes and institute measures for timely submissions in order to take advantage of its benefits.

Jonathan S. Goldstein, Equity Partner and Co-chair of the Condominium and HOA Practice Group; and Natalie Alonso, Associate

     Jonathan Goldstein is partner and co-chair of the condominium and HOA practice group for Haber Law, and Natalie Alonso is a junior associate at Haber Law.

     Haber Law is a law firm based in Miami, Florida, that specializes in complex business litigation, construction law, real estate, finance, transactional law, and condominium association and HOA law. The Firm is committed to its core values of integrity, service, dedication, innovation, diversity, and success. For more information, visit www.haber.law.

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