“The New Reality for Condominium and Cooperative Associations” – FLCAJ Magazine

Increased scrutiny of the structural conditions of buildings in Florida is the new reality for condominium and cooperative associations. This new reality includes both structural reserve obligations and the requirement from many associations to perform milestone inspections.

Every condominium and cooperative association in the state of Florida that operates a building of three or more habitable stories, as determined by the Florida Building Code, must complete a milestone inspection. The milestone inspection must be completed no later than December 31 of the year in which the building reaches 30 years of age and every 10 years thereafter. The obligation to obtain a milestone inspection was created by the legislature in 2022, and the initial deadline for existing buildings over 30 years of age was December 31, 2024. Therefore, many associations have already obtained their milestone inspections.

For any association that is beginning the process of obtaining this inspection, it is first necessary to understand what the milestone inspection entails and what the association must do with it.

The “milestone inspection” is defined by section 553.899(2)(a), Florida Statutes, which states the milestone inspection is an “inspection of the load-bearing elements and the primary structural members and primary structural systems as those terms are defined in” Florida Statutes and must be performed by either an architect or engineer authorized to practice in the state of Florida. The inspection is intended to determine, to the extent reasonably possible, 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.

The milestone inspection consists of two phases. The first phase is where the architect or engineer conducts a visual examination of the building to determine the structural condition and provide an assessment of the structural condition of the building. If the engineer or architect finds no signs of “substantial structural deterioration” of any building components during this visual examination, a Phase II inspection is not required. The term “substantial deterioration” is defined by the Statute as “substantial structural distress or substantial structural weakness that negatively affects a building’s general structural condition and integrity. The term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes unless the licensed engineer or architect performing the phase one or phase two inspection determines that such surface imperfections are a sign of substantial structural deterioration.”

If no substantial structural deterioration is found, no further inspection is required. If substantial structural deterioration is identified in the Phase I report, a Phase II inspection must be performed, and it may involve destructive and non-destructive testing at the inspector’s discretion. If a Phase II inspection is required, within 180 days of submitting the Phase I inspection report the architect or engineer performing the Phase II inspection must submit a Phase II progress report to the local enforcement agency with a timeline for completion of the Phase II inspection.

Upon completion of both the Phase I and Phase II milestone inspections, the architect or engineer must submit a sealed copy of the inspection report with a summary of the material findings and recommendations in the report to the association and to the “building official of the local government which has jurisdiction.”

Upon receipt of the summary and report, the association must distribute a copy of the summary to every owner, regardless of its findings, by mail or email to those owners who have consented to receive email notice as provided by the condominium and cooperative acts; must post a copy of the report on the property; and must publish a copy of the full report and the summary on the association’s website, if the association is required to have a website pursuant to Florida law. The reports must be maintained for 15 years after receipt.

Further, the willful and knowing failure of an association to complete the milestone inspection as required by Florida law is a breach of the officers’ and directors’ fiduciary duties to the unit owners and can result in significant consequences to an association.

Accordingly, the obligation to obtain the milestone inspection report is a significant undertaking for any association.

For associations that are beginning the process of obtaining their milestone inspection, there are a number of issues to consider, including the following:

• Begin budgeting for the milestone inspection early. The association will be engaging an engineer or architect to perform the inspection, and these expenses can run in the tens of thousands of dollars.
• Complete any known maintenance projects prior to obtaining the milestone inspection. The milestone inspection Phase I is a visual inspection of the condominium or cooperative building, and undertaking any known maintenance projects prior to obtaining the inspection will best position the association to avoid the finding of substantial structural deterioration which can result in the requirement of a Phase II inspection.
• Communicate with the owners early and often regarding the status of obtaining the milestone inspection, including when the engineer or architect is engaged, the scope of their work, and when the inspection will occur. Being transparent with owners will avoid awkward inquiries and best position the association to communicate the results of the inspection.

Milestone inspections are now the reality of many condominium and cooperative associations, and associations that take a deliberate approach to budgeting, planning for, and addressing these obligations will be in the best position to ensure compliance with the statute and the ongoing structural maintenance of their buildings.

Robert Caves dedicates his practice to representing community associations primarily as general counsel to condominium, cooperative, and homeowners’ associations. In addition to representing associations in day-to-day legal matters, Rob has developed a focus on addressing telecommunication issues facing associations. Following his graduation from law school, Mr. Caves served as a staff attorney for the First District Court of Appeal in Tallahassee. Mr. Caves is also one of only 190 attorneys statewide who is a board-certified specialist in condominium and planned development law.