Becker & Poliakoff

“New Hurricane Protection Law Questioned” – News-Press

“New Hurricane Protection Law Questioned” – News-Press

Q:  What is the penalty, if any, for a Florida condo association that refuses to adopt hurricane protection specifications? We have none and there is no interest in doing so.  Seems to fall into “they won’t find out about us.” (D.N., via e-mail)

A: The Florida Condominium Act was amended effective July 1, 2024 to require the board of directors of a residential condominium to adopt “hurricane protection specifications” for each building within each condominium operated by the association which may include color, style, and other factors deemed relevant by the board. Prior to this change, going back to 1992, the law only required a board to adopt “hurricane shutter” specifications.

The statutory definition of “hurricane protection” is hurricane shutters, impact glass, code-compliant windows or doors, and other code-compliant hurricane protection products used to preserve and protect the condominium property. All specifications adopted by the board must comply with the building code applicable to the association.

As to the penalty for failing to adopt the required hurricane protection specifications, there is no specific penalty enumerated in the Condominium Act. The Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation is charged with investigating complaints for certain violations of the Condominium Act and has the authority to levy monetary civil penalties of up to five thousand dollars per violation and in certain cases, to pursue legal or administrative action to compel compliance with the laws.

The 2024 amendments to the statute expanded the Division’s enforcement jurisdiction over unit owner-controlled associations, although it is not clear that these amendments confer jurisdiction as to this issue. Regardless, the board has a fiduciary duty to use reasonable efforts to comply with the law and, in my view, should do so.

The new law places a clear burden on associations, as developing the legally required specifications will likely necessitate the involvement of an engineer. That said, a building’s hurricane resistance will likely become one of the most important factors for condominium buyers in the coming years, potentially having a significant impact on property values.

From a practical perspective, the most likely outcome for most associations who fail to comply with this new law is that they may find themselves on the short end of the stick if a legal dispute erupts. For example, the declarations of many condominiums require the unit owner to be responsible for the maintenance, repair and replacement of windows.

Let us assume that “Owner X” installs new windows and the board does not like them and think they are not what new windows should look like. The first thing the association’s lawyer is going to ask is to see a copy of the association’s legally mandated hurricane protection specifications. When the answer is a sheepish “we hoped they wouldn’t find out,” it does not take much imagination to predict the lawyer’s initial views on the case.

The new law did leave somewhat of a lifeline for noncompliant associations by stating that the board may require the unit owner to adhere to a unified building scheme regarding the external appearance of the condominium.

In baseball, “the tie goes to the runner,” but in condominium litigation, it goes to the unit owner. Having a condominium association client that has made reasonable efforts to comply with the law is clearly preferable when standing before a judge than the opposite. As noted in my previous columns, the 2024 Session of the Legislature imposed more regulatory burdens on condominium associations than any set of new laws I can remember.

My sense is that very few associations are in strict or even substantial compliance with this new law as it was largely “sprung on” the industry with very little discussion or warning. However, unless the law is changed, and I see no signs of that being likely, associations will need to come to terms with it or may one day reap undesired consequences.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.