This month, we will initiate a three-part series on legal issues affecting concrete restoration projects. This month, in Part One, we will examine the scope of the problem. In Part Two, we will look at typical issues pertaining to association versus unit owner responsibilities. In Part Three, we will examine the contract process and procedure, including the contract with your Engineer and/or Project Representative, the Construction Contract, and how to protect yourself under the Construction (Mechanics) Lien Law.
In the last five years or so, the detection and remediation of concrete deterioration has become an industry unto itself. The source of the problem is primarily attributable to the brutal environment of South Florida, particularly along the coast. The air has a high content of humidity, and also a high content of calcium chloride (salt). Most hi-rise and mid-rise buildings are constructed of either pre-cast or poured-in-place concrete. In both cases, concrete is a porous substance. When the “skin” (paint surface) of the building is not waterproof, the concrete absorbs the moisture and the salt from the air. This causes the steel reinforcing bars (“rebar”) to rust. When steel rusts, it expands. This then causes the concrete to break away from the building, commonly known as “spalling.”
John Murin, of Jenkins & Charland, Engineers, tells us that by the time significant spalling is detected, there is often significant damage already done to the reinforcing steel structure of the building. Mr. Murin relates that his Firm has consulted on several projects where the reinforcing structure of a balcony has deteriorated to the point where it is a life safety hazard.
According to Mr. Murin, Associations operating newer buildings have the benefit of others’ bad experiences, and can undertake preventive maintenance, using modern, technologically-advanced products, to waterproof buildings, and prevent serious deterioration.
B.K. Brookman of Johnson Paints (operating under the tradename Flex-Bon), says “the industry has developed various urethane-based membrane products for horizontal surfaces (balcony decks) and elastomeric coatings for vertical surfaces, such as the building walls.” According to Mr. Brookman, these products are only warranted if applied by an authorized applicator.
Further contributing to the problem faced by many associations is defective design and/or construction, which compounds the likelihood of structural deterioration. One common defect is “negative sloping” balconies, where the water that accumulates on the balcony (usually from wind-driven rain) does not “slope-to-drain,” but rather “ponds” on the balcony. This causes the rain water to seep in through the concrete, which hastens the rusting of the rebar.
Another common defect contributing to accelerated deterioration is insufficient concrete thickness over reinforcing steel. The Standard Building Code, for example, requires 3/4 inches of concrete coverage. We have been consulted on cases where the thickness of the concrete over the reinforcing steel is as little as 1/8 of an inch.
Finally, a common cause of accelerated deterioration is the placement of carpeting on concrete balconies. In many cases, carpeting was provided by the Developer, or has been installed by unit owners over the years. Most engineers will advise that carpeting is not a preferable covering for concrete balconies. Carpeting can trap water and greatly enhance the potential for destruction of rebar. In some cases, even after a building has been waterproofed, the placement of carpeting will void the Manufacturer’s Warranty. “River rock” and other porous balcony coverings can also accelerate deterioration.
It is the Board’s fiduciary duty to take reasonable steps to maintain the Common Elements, which will almost always include the structure of the building. Perhaps, Judge Hugh Glickstein of the Fourth District Court of Appeal summed it up best when he said (although in the context of a condominium association whose legal rights against the Developer had expired due to the Statue of Limitations): This case points up the necessity that Condominium Associations, as soon as the unit owners take over control, engage professional engineers or architects to determine whether the buyers received all that they thought they had bought. The likelihood is remote that volunteer unit owner-directors, however well-meaning, can ascertain as well as trained experts can whether the development buildings have structural integrity. Conquistador Condominium VIII Association, Inc. v. Conquistador Corp. 500 So. 2d 346 (Fla. 4th DCA 1987) [Glickstein concurring. Based upon the foregoing factors, it is our belief that every association should periodically consult with a Professional Engineer for the purpose of evaluating the condition of the building, and obtaining recommendations for preventive maintenance. It is said that an ounce of prevention is worth a pound of cure, or as the man in the transmission company commercial says: “pay me now or pay me later.”