In a surprise move, the Florida Legislature decided in its pending Special Session to take up the “Surfside legislation” that did not pass during the Regular Session earlier this year. SB 4-D passed, and Section 553.899 was added to the Florida Statutes to provide for Mandatory Inspections of Condominium and Cooperative Buildings.

If a condominium building is three or more stories in height, a “milestone inspection” is required and must be performed by a licensed architect or engineer. A milestone inspection is defined as:

“Milestone inspection” means a structural inspection of a building, including an inspection of load-bearing walls and the primary structural members and primary structural systems as those terms are defined in s. 627.706, by a licensed architect or engineer authorized to practice in this state for the purposes of attesting to the life safety and adequacy of the structural components of the building and, to the extent reasonably possible, determining the general structural condition of the building as it affects the safety of such building, including a determination of any necessary maintenance, repair, or replacement of any structural component of the building. The purpose of such inspection is not to determine if the condition of an existing building is in compliance with the Florida Building Code or the firesafety code.

The inspection must be performed within 30 years from the date the Certificate of Occupancy (“CO”) was issued for the building. However, if the building is within three miles of the coastline, the milestone inspection must be performed within 25 years of the CO date.

The law is being phased in by requiring buildings that received a CO before July 1, 1992, to complete the first milestone inspection by December 31, 2024. Further, the law requires the “local enforcement agency,” presumably the local building department, to send notice to associations of the milestone inspection requirement via certified mail. The association then has 180 days to perform a “Phase One” inspection.

The Phase One inspection requires the licensed architect or engineer to perform a visual inspection of the property and undertake a qualitative assessment of the building’s condition. If the Phase One inspection reveals no sign of substantial structural deterioration, then a “Phase Two” inspection is not required. A Phase Two inspection is required if substantial structural deterioration is identified. The Phase Two inspection may require destructive testing, at the inspector’s direction. The term “substantial structural deterioration” is defined in the new statute.

The engineer or architect performing either a Phase One or Phase Two inspection must prepare a written inspection report. The report must be sealed and have a separate summary pointing out its material findings. The report with a separate summary must be given to the association and the local building official with jurisdiction over the building. The inspection report must:

1. Bear the seal and signature, or the electronic signature, of the licensed engineer or architect who performed the inspection.
2. Indicate the manner and type of inspection forming the basis for the inspection report.
3. Identify any substantial structural deterioration, within a reasonable professional probability based on the scope of the inspection, describe the extent of such deterioration, and identify any recommended repairs for such deterioration.
4. State whether unsafe or dangerous conditions, as those terms are defined in the Florida Building Code, were observed.
5. Recommend any remedial or preventive repair for any items that are damaged but are not substantial structural deterioration.
6. Identify and describe any items requiring further inspection.

The association must then distribute a copy of the inspector-prepared summary of the inspection report to each unit owner by mail, personal delivery, or e-mail to those who have consented to receive electronic notice, must post a copy in a conspicuous place on the condominium property, and must publish a full inspector-prepared summary on the association website, if a website is required.

The new law gives local building officials discretion to prescribe timelines and penalties for non-compliance. County commissions may adopt ordinances establishing timelines for necessary repairs identified in a report, and such repairs must be commenced within 365 days after receiving the report. If the association fails to submit proof that the repairs have been scheduled or commenced for substantial structural deterioration identified in a Phase Two inspection report, the local law enforcement agency must review and determine if the building is unsafe for human occupancy.

Chapter 718 was amended to incorporate the requirements for the mandatory inspection report and to require a structural integrity reserve study. Section 718.103, Florida Statutes, was amended to add subsection (25), which defines a “structural integrity reserve study”, as follows:

(25) “Structural integrity reserve study” means a study of the reserve funds required for future major repairs and replacement of the common areas based on a visual inspection of the common areas. A structural integrity reserve study may be performed by any person qualified to perform such study. However, the visual inspection portion of the structural integrity reserve study must be performed by an engineer licensed under chapter 471 or an architect licensed under chapter 481. At a minimum, a structural integrity reserve study must identify the common areas being visually inspected, state the estimated remaining useful life and the estimated replacement cost or deferred maintenance expense of the common areas being visually inspected, and provide a recommended annual reserve amount that achieves the estimated replacement cost or deferred maintenance expense of each common area being visually  inspected by the end of the estimated remaining useful life of each common area.

In addition, Section 718.111(12), Florida Statutes, was amended to add the structural integrity reserve study as part of the official records that the association must maintain and to make the inspection reports official records of the association. The law requires that these reserve studies must be maintained as part of the official records of the association for 15 years. Milestone inspections must also be retained for 15 years. Renters are entitled to inspect the inspection reports.

If the association is required to have a website, the inspection reports described above and any other inspection reports relating to structural or life safety inspections of the condominium property and the association’s most recent structural integrity reserve study must be posted on the website.

Perhaps the most significant change to the law, from an operational perspective, is the budget adoption process, particularly regarding reserves. The reserve schedule will now be required to include any items identified in a newly required “structural integrity reserve study.” For buildings of three stories or more, the initial reserve structural integrity study must be completed by December 31, 2024, and must be performed at least every 10 years thereafter.

Effective December 31, 2024, an association may not vote to waive or reduce reserves for the items listed in the structural integrity reserve study. Further, effective December 31, 2024, the members of an association may not vote to use reserve funds, or any interest accruing thereon, that are reserved for items listed in in the structural integrity reserve study for any other purpose other than their intended purpose.

The structural integrity reserve study must address: roofs; load bearing walls or other primary structural members; floors; foundations; fireproofing and fire protection systems; plumbing; electrical systems; waterproofing and exterior paint; windows; any other item which exceeds $10,000.00 in deferred maintenance and replacement costs where the failure to replace or maintain such item negatively affects the other items listed herein and was identified by the engineer or architect performing the visual inspection portion of the structural integrity reserve study.

The restrictions on waiving, reducing or using items, which would be reserved for a structural reserve study, for another purpose is not limited to those buildings three stories and higher.  Therefore, as currently written, we believe this may apply to all condominium buildings.

Failure to complete the milestone inspections and reserve study in a timely and proper manner “is a breach of an officer’s and director’s fiduciary relationship to the unit owners.” If an association is required to have a milestone inspection performed, the association must arrange for the inspection to be performed and is responsible for ensuring compliance with Section 553.899.  Further, the association is responsible for all costs associated with the inspection.

The Division of Florida Condominiums, Timeshares and Mobile Homes (the “Division”) is given rulemaking authority related to milestone inspections and structural integrity reserve studies. The Division is required to obtain various information from associations before the end of this year and must then compile a searchable list on its website related to the information it receives.

Section 718.501 was amended to add subsection 3(a), which provides:

(3)(a) On or before January 1, 2023, condominium associations existing on or before July 1, 2022, must provide the following information to the division in writing, by e-mail, United States Postal Service, commercial delivery service, or hand delivery, at a physical address or e-mail address provided by the division and on a form posted on the division’s website:

1. The number of buildings on the condominium property that are three stories or higher in height.
2. The total number of units in all such buildings.
3. The addresses of all such buildings.
4. The counties in which all such buildings are located.

(b) The division must compile a list of the number of buildings on condominium property that are three stories or higher in height, which is searchable by county, and must post the list on the division’s website. This list must include all of the following information:

1. The name of each association with buildings on the condominium property that are three stories or higher in height.
2. The number of such buildings on each association’s property.
3. The addresses of all such buildings.
4. The counties in which all such buildings are located.

(c) An association must provide an update in writing to the division if there are any changes to the information in the list under paragraph (b) within six months after the change.

Chapter 718 was further amended to require both the developer and a unit owner selling his/her unit to provide before the sale of the unit, copies of the inspector prepared summary of milestone inspection reports and copy of the most recent structural integrity reserve study or a statement that the association has not completed a structural integrity reserve study.

Chapter 719 was amended to include these same requirements.

Section 468.4334, Florida Statutes, was amended to require a community association manager or community association management firm that has a contact with a community association with a building subject to Section 553.899 to comply with that section as directed by the board.

Other Issues Addressed In SB 4-D

Section 553.844 was amended to address windstorm loss mitigation, requirements for roofs and opening protection. This Section provides that if an existing roofing system or roof section was built, repaired or replaced in compliance with the requirements of the 2007 Florida Building code or later and 25% or more of the same is being repaired, replaced or recovered, only the repaired, replaced or covered portion is required to be constructed in accordance with the Florida Building Code in effect when the repair or replacement is being made.

Chapter 720, Recall, was amended to refer to the revised subsections of Chapter 718 consistent with the revisions above.

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Revises the definition of the term “uniformed service” to include the United States Space Force. Revises Sections 718.113(4) and 720.304(2)(a) to allow owners to display in a respectful way one portable, removable official flag of the Space Force.

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SB 222: SWIMMING POOL SPECIALTY CONTRACTING SERVICES

(CHAPTER NO. 2022-90, LAWS OF FLORIDA)
Effective Date: July 1, 2022

Authorizes certain persons, who are not certified or registered to perform the work of a specialty contractor, to perform certain specialty contracting services for commercial or residential swimming pools, interactive water features, hot tubs, and spas, under the supervision of specified licensed contractors.

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CS/SB 518: PRIVATE PROPERTY RIGHTS TO PRUNE, TRIM, AND REMOVE TREES

(CHAPTER NO. 2022-121, LAWS OF FLORIDA)
Effective Date: July 1, 2022

Revises the conditions under which a local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property when the tree poses an unacceptable risk to persons or property. Provides a definition of residential property and what documentation the property owner must provide from an arborist or landscape architect.

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CS/CS/HB 423: BUILDING REGULATION

(CHAPTER NO. 2022-136, LAWS OF FLORIDA)
Effective Date: July 1, 2022

Provides that a local law cannot prohibit or restrict a private property owner from obtaining a building permit to demolish his or her single-family residential structure that is located in certain flood zones if the lower floor elevation is at or below the base flood elevation.  However, the law will not apply to any single-family residential structure designated as a historic place. Requires a local building official to issue a certificate of occupancy or certificate of completion within a certain number of days after receipt of certain information, including the payment of all outstanding fees. Revises the requirements for when a local government requests certain additional information from an applicant for a building permit and limits the number of times the local government may request certain information from an applicant.

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CS/CS/SB 1062: SERVICE OF PROCESS

(CHAPTER NO. 2022-190, LAWS OF FLORIDA)
Effective Date: January 1, 2023

Authorizes the Department of State to electronically receive service of process. Revises procedures for service on partnerships, limited liability partnerships, and limited partnerships. Requires the designation of registered agents by certain partnerships, corporations, and companies. Revises provisions related to service on public agencies and officers. Provides for substituted service on certain nonresidents and foreign business entities and on individuals and foreign business entities concealing their whereabouts.

CS/HB 7049: LEGAL NOTICES

(CHAPTER NO. 2022-103, LAWS OF FLORIDA)
Effective Date: January 1, 2023

Section 50.011 Publication of Legal Notices has been amended to revise the requirements for newspapers publishing legal notices, provide that publication is permitted on a publicly accessible website under 53.0311, and delete the option for publication on a newspaper’s website.

Substantial portions of 50.0211, Internet website publication, were deleted and Section 50.0311 was created and titled Publication of advisements and public notices on publicly accessible website and governmental access channels. Permitting a governmental agency to publish legally required advertisements and public notices if the cost is less than publishing in a newspaper on a publicly accessible website or governmental access channel; however, there are additional requirements for counties with a population of fewer than 160,000.

Requiring a governmental agency that uses a publicly accessible website to provide notice at least once per year in a newspaper of general circulation or another publication that is mailed or delivered to all residents and property owners throughout the government’s jurisdiction, indicating that property owners and residents may receive legally required advertisements and public notices from the governmental agency by first-class mail or e-mail upon registering their name and address or e-mail address with the governmental agency.

Revising the Affidavit for Proof of Publication to include publication on a publicly accessible website.  Providing notices of sale can also be published on a publicly accessible website for a least two consecutive weeks before the sale. Providing other types of notices where publication on a publicly accessible website is permitted.

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CS/SB 898, LODGING STANDARDS (“MIYA’S LAW”)

(CHAPTER NO. 2022-222, LAWS OF FLORIDA)
Effective Date: July 1, 2022

Creating Section 83.515 to require public lodging establishments with a certain percentage of units rented to require each employee to undergo a background screening, and permits the landlord to disqualify a person from employment if convicted or enters a plea of guilty or nolo contendere to criminal offenses involving disregard of safety for others or a crime of violence; amending Section 83.53 to require that landlords give at least 24 hours’ notice prior to entry for repairs to the dwelling unit; amending Section 509.211 to add subsection (5) to require all public lodging establishment employees to undergo a background screening as a condition of employment, and for the public lodging establishment to maintain logs and establish policies and procedures for the issuance and return of dwelling unit keys; requiring the licensee to provide proof of compliance with subsection (5) to the Division of Hotels and Restaurants of the DBPR upon request; creating Section 509.098 to prohibit a public lodging operator from charging hourly rates, except for a late checkout fee.

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CS/SB 1190: TWO-WAY RADIO COMMUNICATION ENHANCEMENT SYSTEMS

(CHAPTER NO. 2022-210, LAWS OF FLORIDA)
Effective Date: July 1, 2022

Section 50.011 Publication of Legal Notices has been amended to revise the requirements for newspapers publishing legal notices, provide that publication is permitted on a publicly accessible website under 53.0311, and delete the option for publication on a newspaper’s website.

Substantial portions of 50.0211, Internet website publication, were deleted and Section 50.0311 was created and titled Publication of advisements and public notices on publicly accessible website and governmental access channels. Permitting a governmental agency to publish legally required advertisements and public notices if the cost is less than publishing in a newspaper on a publicly accessible website or governmental access channel; however, there are additional requirements for counties with a population of fewer than 160,000.

Requiring a governmental agency that uses a publicly accessible website to provide notice at least once per year in a newspaper of general circulation or another publication that is mailed or delivered to all residents and property owners throughout the government’s jurisdiction, indicating that property owners and residents may receive legally required advertisements and public notices from the governmental agency by first-class mail or e-mail upon registering their name and address or e-mail address with the governmental agency.

Revising the Affidavit for Proof of Publication to include publication on a publicly accessible website.  Providing notices of sale can also be published on a publicly accessible website for a least two consecutive weeks before the sale. Providing other types of notices where publication on a publicly accessible website is permitted.

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