Boca Raton Building Recertification Program Implemented

With greater attention being given to building safety, the City of Boca Raton has implemented a Building Recertification Inspection Program. The City Council passed Ordinance 5589 at its August 24, 2021 meeting. The new ordinance will require inspection and recertification of buildings that are 30 years and older. Additional recertification will be required every 10 years. This requirement applies to buildings that are greater than three stories in height and to buildings that are greater than 5,000 square feet with an occupancy of greater than 500 persons. Single-family homes and duplexes are exempted. 242 buildings currently meet the criteria for the recertification requirement, and the City will begin inspections of these buildings on a proposed four-year schedule with the buildings divided into four zones based on geographic location. The recertification process will include the submittal of an engineering/inspection report, review by the City’s Building Official, and implementation of a Repair Plan as required. Impacted buildings will be notified by the City at least a year before the deadline. Should you wish to discuss the impact of the foregoing on your building, please do not hesitate to call us.

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Broward County Condominium Structural Issues Committee

    I’m Steve Geller, and I’m Of-Counsel to Sachs Sax Caplan.  I’m an “A-V Preeminent” Lawyer, listed in both “Florida’s Best Lawyers”, “South Florida Super Lawyers”, etc.  I’ve been practicing law for 39 years, and when I’m not practicing law, I’m also a politician.  I served in the Florida House and Senate for 20 years, including serving as the Senate Minority (Democratic) Leader, and I’m currently a Broward County Commissioner and Mayor of Broward County.     As Mayor, after the collapse of the Champlain Towers South Condominium in Miami-Dade County, I created and appointed the “Broward County Condominium Structural Issues Committee”, to study the issues involving Condominium living and safety.  This Committee consisted of 16 members.  I served as Chair.  Other members included two State Senators, two State Representatives, two Mayors, three City Commissioners, representatives of condominium associations, engineers, attorneys, (including SSC’s own Michael Chapnick, Board Certified in Condominium and Planned Development Law), etc.  All three City Commissioners were experts in Condominium issues.  The Committee met for over 26 hours, and heard expert testimony from 12 speakers, including engineers, attorneys, insurance experts, an environmental expert testifying on the impact of sea level rise on condominiums, etc.  The Committee also took public testimony.     The Committee spent hours debating issues and reached recommendations that I wanted to share with you.     There was extensive testimony about the inherent tension which sometimes exist between unit owners and a Condominium Board relating to expenditures.  Many condominium residents, particularly seniors, don’t want to or feel that they can’t pay for proper maintenance or for reserves, which are moneys set aside for large future expenditures.  For example, if you know that you’re going to need a new roof in 15 years, you should be setting aside one fifteenth of that money each year.  Florida law requires that this money be set aside, but also permits the unit owners to waive the reserves by a majority vote. There was extensive testimony that better maintenance would be far more cost effective than having to replace structural support later.  The Committee recommended that in order to...

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Peter S. Sachs Weighs in on Vaccine Mandates

   Peter S. Sachs explains potential exemptions to the President's vaccine mandate for businesses. Watch the video from WPTV below.  Source: https://www.wptv.com/coronavirus/president-biden-unveils-his-new-strategy-to-combat-covid 

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Eviction Moratorium Extended

   As we have previously discussed, during the COVID-19 pandemic, the Federal Government issued moratoriums on residential evictions as well as foreclosures. These were enacted in order to protect the public health and prevent an overwhelming number of people becoming homeless, or to protect those struggling with the affects of the pandemic. Earlier this month, the foreclosure moratorium, after several renewals, lapsed. However, the Federal Government has, once again, extended the moratorium on residential evictions. However, in so doing, they have added some limitations to its applicability.    The order says “a landowner, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any county or U.S. territory while the county or territory is experiencing substantial or high levels of community transmission of SARS-CoV-2.” The order goes on to define a covered person, in pertinent part, as a tenant or other person in possession who provides their landlord with a declaration under the penalty of perjury that (i) the individual has used his best efforts to obtain governmental assistance for rental or housing; (ii) they earned less than $99,000 (or $198,000 if filing jointly) in 2020, or expects to learn less in 2021; (iii) the individual is unable to pay rent due to loss of income; (iv) the individual is using best efforts to make timely partial payments as best they can; (v) eviction would render the individual homeless; and (vi) the individual lives in an area with substantial or high rates of community transmission. Again, it is worth noting that the moratorium on foreclosures has lapsed, and thus foreclosures are legally permitted to proceed. Should you need to discuss the impact of the foregoing on your Association, please do not hesitate to call us. Daniel Weber, Esq.

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New Change in Florida Condominium Act should Impact Attorney's Fee Awards in Litigation

            Florida Statute 718.303, which governs condominium associations, is titled “Obligations of owners and occupants; remedies.” Section 718.303(1) grants condominium associations and unit owners the power to file certain actions against: (1) an association; (2) a unit owner; (3) directors; and/or (4) tenants or other invitees occupying a unit. Until June 30, 2021, Section 718.303(1) applied to “[a]ctions for damages or for injunctive relief, or both, for failure to comply” with Chapter 718, Florida Statutes, and/or a condominium’s governing documents. However, effective July 1, 2021, the Florida Legislature amended Section 718.303(1), by replacing “[a]ctions for damages or for injunctive relief” with the broader language of actions “at law or in equity.”             Under Florida law, each party is responsible for their own attorneys’ fees absent a contract or statute stating otherwise. Importantly, Section 718.303(1) provides that the prevailing party in such actions is entitled to recover attorney’s fees from the non-prevailing party. Thus, prior to the amendment of Section 718.303(1), a prevailing party in an action for damages or for injunctive relief under that statute was entitled to attorney’s fees. But now prevailing parties are entitled to an award of attorney’s fees in actions at law or in equity, or both relating to the failure to comply with Chapter 718 or the governing documents.             Declaratory judgment actions are common causes of action raised in Chapter 718 proceedings. For this action, a plaintiff usually maintains that declaratory relief is needed on an issue where there is uncertainty as it relates to the parties’ rights, duties, and status. Declaratory relief is neither damages nor injunctive relief. Thus, a prevailing party under the prior version of Section 718.303(1) would not have been entitled to recover attorney’s fees from the non-prevailing party. For example, in Angelo’s Aggregate Materials, Ltd. v. Pasco Cty., 118 So. 3d 971, 975 (Fla. 2d DCA 2013), the appellate court construed “damages or injunctive relief” expressed in a county ordinance “to apply only to damages and injunctions and not to declaratory actions.”             But now Section 718.303(1) specifies actions “at law or in equity,” and...

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Florida Can Prevent Another Surfside Building Collapse Tragedy if Governor DeSantis Convenes Expert Task Force for Statewide Safety Standards

    Some might say it’s too soon. Too soon to talk politics and policy, when the search, rescue and recovery operations at the Surfside Champlain Towers South condominium collapse disaster are still tragically unfolding before our eyes. But this is exactly the time to discuss what we can do to guarantee this kind of disaster never happens again – when the unbearable grief is hardest to see, when the potential death toll is the hardest to comprehend.    Let’s be clear: 40-year-old buildings in the United States should never simply collapse. Period.    And we shouldn’t wait another moment before finding and embracing commonsense policies that make sure that is true.    In Florida, where our edifices are under constant attack – from salt, sand, water, storms, lightning, winds, surge, and more – the most important next step we can take is to make sure the same standards are being met in every community.    In that spirit, we have urged Gov. Ron DeSantis to immediately establish a statewide task force of industry experts to determine the highest and best standards and other policies to improve the safety of Florida’s high-rise buildings. That task force could begin work now, so that its findings and recommendations help guide Gov. DeSantis and the Legislature in enacting new state laws.    For those of us who have lived in Florida for many years, this approach feels familiar. In the wake of Hurricane Andrew, Florida adopted a uniform statewide Florida Building Code. The code mandated new buildings must be able to withstand hurricane-force winds and have storm shutters or storm-resistant windows. But what about older structures?    Requirements governing the frequency and thoroughness of inspections vary widely among Florida’s 67 counties and more than 400 cities and towns. Local governments often loudly resist legislation that takes away their authority by imposing statewide standards – but for safety issues like this one, such preemption is wholly appropriate.    We inspect the elevators inside these buildings every year – so shouldn’t we regularly assess the safety of the buildings themselves?    In the meantime, condo boards...

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Peter S. Sachs Spoke with CNN about Champlain Towers South

    (CNN)An independent budget review warned the Champlain Towers South condo association that its financial reserves were critically underfunded in the face of urgently needed structural repairs a little over a year before the building collapsed, a document obtained by CNN shows.      The condo association only had 6.9% of the recommended level of money to complete repair and replacement projects and stay financially secure, according to a March 2020 report from Association Reserves, a company that analyzes housing association finances.      The report said that various components of the Surfside, Florida, building had zero years of "remaining useful life." Those included the entrance and garage -- where some experts believe concrete cracking may have contributed to last month's deadly collapse.     The study, which has not been previously reported, underscores how squabbling over assessments and underfunded reserves brought the repair situation at Champlain Towers South to a head.The association was projected to have a little over $706,000 in its reserves as of January 2021, according to the report, while Association Reserves recommended it stockpile nearly $10.3 million to account for necessary repairs. Based on that gap, the report found that the Champlain South board was at "high risk" of "special assessments & deferred maintenance." About a year after receiving the report, the board moved in April 2021 to levy a $15 million special assessment on condo owners to raise money needed for repairs. Robert Nordlund, the founder and CEO of Association Reserves, told CNN in an interview that about three out of 10 condo associations nationwide that his company reviews are at high risk, with less than 30% of the recommended reserves. He said the report showed the importance of condo associations stockpiling enough money to conduct regular repairs. "I just wish they had hired us five years or 10 years or 20 years prior," he said of the Champlain South condo board. The board had never previously received a reserve budget study, according to a separate PowerPoint presentation to residents from November 2020. The presentation alluded to the contentious debates among owners about the big-ticket items. "Complaining Or Shouting At Each Other Doesn't Work!"...

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2021 Legislative Update for Condominiums, Cooperatives and HOAs

    Statutory Update for Condominiums, Cooperatives and Homeowners Associations.     The following is a summary of recent changes to the Florida Statutes relating to Condominiums, Cooperatives and Homeowners Associations. It should be noted that this handout is a summary in nature and has been compiled to identify provisions which are of extra importance to our community association clients. On the other hand, because it is summary in nature, this handout should not be relied upon as a definitive guide for any Association. We suggest you review the actual statutory language or contact your Association attorney with specific questions. See the document below for the full update. Download PDF File Here  

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Louis Caplan speaks with WTSP about Surfside collapse; prompts calls for statewide inspection regulation

   BOCA RATON, Fla. - Efforts at the site of the Surfside condominium collapse have shifted from rescue to recovery after two weeks of searching for survivors. At the time of this article, 64 people have been recovered from the rubble. Another 76 remain unaccounted for. This tragedy has raised questions about the safety of high-rise condominium buildings, especially waterfront properties. While the cause of the collapse has not been determined and likely won't be for months, many experts are pointing fingers at the lack of inspection requirements for not catching concerning infrastructure issues sooner. In Miami-Dade County, building re-inspections are only due every 40 years. There is no mandate for building inspections or re-inspections across the state, meaning it's up to building owners and property management teams to conduct inspections when they decide it's necessary. Florida law firm Sachs Sax Caplan, known for leading in the field of condominium law, thinks the state should create guidelines and regulations for building construction and inspections. The firm wrote a letter to Governor Ron DeSantis' office, asking him to create an expert task force to establish statewide standards for building inspections and re-inspections to protect life and safety. "It could really create an opportunity to have one of the positive legacies of this terrible experience be one of saving lives where we create an opportunity to have safer buildings so people can sleep at night," said Louis Caplan, a founding partner at Sachs Sax Caplan and an expert in community association law. Caplan says the recommendation is for the state to put together a team of engineers, architects, contractors and other industry experts that could help create guidelines for the type of materials used in new construction, the frequency of inspections and disclosure requirements to unit buyers at the state level. Caplan says his firm has gotten confirmation that their letter was received by the governor's office, but has not gotten any feedback about their proposal. The last time Florida created statewide building code changes was after Hurricane Andrew destroyed more than 25,000 homes in 1992. The building codes mandated by the state...

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Focusing in on the Champlain Towers South

     The continued reporting concerning the causes of the collapse of the Champlain Towers South in Surfside, Florida, is placing a new spotlight on the complex principles associated with condominiums in south Florida. The outcome involving this local tragedy will be shaped by how we move forward.      For a baseline, let us talk about the most gripping engineering disaster in the United States before the catastrophe of the Champlain: the Hyatt collapse of the suspended hallways in Kansas City, Missouri hotel on July 17, 1981.  Not often mentioned, having happened 40 years ago, it is instructive as to what is now likely to unfold.  The Hyatt Company during that time had made a name that was associated with architectural wizardry in hotel design.  The K.C. Hyatt opened on July 1, 1980.  Within the multi-story atrium in the flagship hotel, there were suspended open walkways, held in place by steel hangar rods.  On  the evening of July 17, 1981, just a little over a year after the opening, during a particularly crowded event attend by 1600 people, the fourth-floor walkway collapsed  and in the cascade of additional damage, 114 people died and over 200 were injured. The Champlain is on the verge of exceeding that death toll.  Like the Champlain, it became the center of riveting media coverage with the last rescue being made nine hours after the initial structural failure and people losing limbs as they had to be cut from the wreckage.     Interestingly, the Champlain was finished at about the same time, in 1981.  It has been observed that in its forty-year history, it survived hurricanes.  Regardless, it was also reported that the building’s structural integrity was suspect, with the degradation of reinforced concrete support structures due to corrosion of the reinforcing steel, often referred to as “rebar”.  Mention has also been made of a cause related to the improper original installation of the rebar.  It will take some time to sort this out.  The Hyatt disaster was not fully explained until May 1982, almost a year later, in an article under the guidance of the National...

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Attorney Brett A. Duker Achieves Board Certification

   July 29, 2021 - Principal Attorney Brett A. Duker has been conferred the status of Board Certified in Construction Law by the Florida Bar. Duker is one of seventy six attorneys in the state to earn Florida Bar board certification, which recognizes attorneys’ special knowledge, skills, and proficiency in various areas of law and professionalism and ethics in practice. Board certified lawyers are “Evaluated for Professionalism and Tested for Expertise.”     Florida’s legal ranks currently feature over 5,000 board-certified attorneys, offering expertise in 27 areas of law. With just one in 20 Florida Bar members able to call themselves “board certified,” it clearly is a crucial component in the career of any attorney looking to emerge from the crowd.    As the legal landscape grows increasingly competitive, board certified lawyers are able to use their status to set themselves apart from peers. And a growing number of Bar members are exploring board certification to help stand out in what they see as a crowded landscape. Minimum standards for construction law certification, provided in Rule 6-24.3, include: Practice of law for at least five years;Substantial involvement in the specialty of construction law – 40% or more – during the three years immediately preceding application;45 hours of approved construction law certification continuing legal education in the three years immediately preceding application;Peer review; and,A written examination. Congratulations Brett! Visit the Florida Bar website to see a full list of individuals who are now board certified: https://www.floridabar.org/the-florida-bar-news/76-florida-lawyers-earn-board-certification/ 

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'People are saying, 'Am I safe?'' attorney Peter S. Sachs says

   Sachs Sax Caplan, P.L. founding partners, Louis Caplan and Peter S. Sachs are quoted in the news regarding the Surfside tragedy.  "People are saying, 'Am I safe?'" said founding partner Peter S. Sachs. "'What repairs do we need in my building? What have we done, what have we done?'" "We don't have any re-inspections required in Palm Beach County, or anywhere in the state, outside of Miami-Dade and Broward County," Sachs said. "If we could prevent this from happening again, that would be a wonderful legacy to this whole situation."  “Our hearts go out to all the victims of the Surfside collapse and their loved ones. This horrific tragedy is a red flag warning for all high-rise condominiums, apartments, and commercial buildings – not just those along the coast,” said Louis Caplan, a founding partner of Sachs Sax Caplan. “The State of Florida inspects everything from elevators to gas pumps to ensure public safety, and we should similarly have statewide standards for buildings where hundreds, or even thousands, of people live or work,” said Peter S. Sachs, a founding partner at the firm who helped draft Florida’s original condominium laws in the mid-1970s. Caplan said Florida cannot leave the safety of buildings to volunteer condominium association members who lack the professional expertise to judge a structure’s integrity. “Condominium boards are willing to spend whatever is necessary to protect their residents,” he said. “The focus should be not on what it costs, but rather what it saves – lives.” Click the links below to read the articles in full. WPTV Article: https://www.wptv.com/news/state/attorneys-call-for-task-force-following-surfside-collapse-to-recommend-reforms WFLX Article: https://www.wflx.com/2021/07/01/attorneys-call-task-force-following-surfside-collapse/ Florida Politics Article: https://floridapolitics.com/archives/438646-law-firm-calls-for-special-task-force-after-surfside-condo-disaster/ 

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Condo Law Experts Urge Governor to Empanel Special Task Force for Statewide Reforms in Wake of Surfside Building Tragedy

   BOCA RATON, Fla. – Governor Ron DeSantis should immediately empanel a special task force of experts to examine the tragic Surfside condominium building collapse and recommend reforms intended to ensure that nothing like it ever happens again. That is the recommendation of Sachs Sax Caplan, one of the nation’s most experienced and respected law firms in the area of condominium law.    The special task force would include engineers, architects, building contractors, and other industry experts to make recommendations to the Governor, Florida Legislature, and state regulatory agencies in advance of the January 2022 session of the Legislature. The focus should be to develop policy changes that help establish a uniform statewide standard for building inspections and re-inspections, with the overarching goal of protecting life and safety.  The group could also make specific suggestions to ensure that existing condominium buildings are safe across the state and that current and future structures maintain the highest safety standards and structural integrity.    “Our hearts go out to all the victims of the Surfside collapse and their loved ones. This horrific tragedy is a red flag warning for all high-rise condominiums, apartments, and commercial buildings – not just those along the coast,” said Louis Caplan, a founding partner of the law firm. “The condition of aging buildings is a statewide problem, and it demands careful examination by a panel of experts who can make comprehensive recommendations at the state level.”    Since the June 24 collapse of Champlain Towers South in the Miami-Dade County town of Surfside, scores of questions are being raised, including the cause of the collapse, how to determine if other condo/high-rise buildings are at risk, whether building inspection laws and standards should be uniform statewide, and what steps condo associations should take to ensure that their buildings are safe.    Caplan and fellow founding partner Peter S. Sachs are urging the Governor to act quickly to create the task force and appoint members with a relevant range of professional expertise. Areas to scrutinize could include building materials, the frequency of inspections, and new mandatory disclosure requirements between condo associations and...

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Expiration of COVID-19 State of Emergency

       On March 9, 2020, Governor DeSantis issued Executive Order 20-52, declaring a statewide State of Emergency in response to COVID-19. This order triggered statutory emergency powers for community associations throughout the state. The Governor continued to issue Executive Orders extending the State of Emergency every 60 days, up until the most recent extension made on April 27, 2021. On June 26, 2021, when the Governor did not further extend the March 2020 order, the COVID-19 State of Emergency expired.        Although the COVID-19 State of Emergency has expired, the COVID pandemic remains, and Florida continues to experience new cases, including new infections from COVID variants. In light of this, we believe the statutory emergency powers may continue to be relied upon for a reasonable period of time to continue employing reasonable measures association boards believe are necessary to provide for the health, safety and welfare of residents and their guests. For example, associations may continue to require use of face masks in common areas based on current CDC guidelines. Additionally, a graduated reopening of amenities, such as restricted capacities and/or operating hours, may be appropriate in balancing the safety of residents with the desire to enjoy all of the amenities in full, pre-pandemic, fashion. Each association will have its own unique set of circumstances and needs shaping which measures individual boards believe are reasonable and appropriate for their association.        The governing documents for an association will further address the extent of a board’s authority to administer and operate the association and to provide for the health, safety and welfare of the residents. If your board is struggling with the transition from the state of emergency and authority provided by the emergency powers, you should consult your association attorney. Michael UngerbuehlerSACHS SAX CAPLAN, P.L.

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Safety Protocol Consideration

        On Thursday, June 24, 2021 around 1:30 a.m. officials received word of a building collapse in Surfside, Florida. Our thoughts and prayers go out to the residents affected by the tragedy at Champlain Towers South in Surfside. The condominium building has 136 units; approximately 55 units collapsed, and the entire building is now uninhabitable. The search, rescue and reunification processes are ongoing.         “Buildings just don’t fall down”, said Surfside Mayor Charles Burkett. He’s right, they don’t, which may lead to many other associations questioning their buildings’ structural safety and integrity. While it’s unclear what happened in Surfside, this tragic event underscores the necessity for associations serving multi-story buildings to be proactive and look at properties and their certifications to ensure this type of situation does not happen again.         In both Broward and Miami-Dade counties, there is a 40-year recertification process for real estate properties that are over 40 years old. Miami-Dade has had this process in place since the mid 1970’s, and Broward followed suit in 2005. The program calls for structural and electrical inspections for buildings 40 years old or older and every ten years thereafter. There are some exemptions depending on square footage, occupancy amount, farming buildings, as well as buildings on Indian Reservations.  While Palm Beach county does not have the same requirements for older buildings, it is highly recommended that buildings 40 years and older take these same precautions and follow these protocols.         Champlain Towers was built in 1981, making it a 40-year old building this year. Units in the building are typically listed between $600,000 and $710,000. This was a luxury condo building with many amenities and luxurious features. Surfside Commissioner Eliana Salzhauer said the building was beginning its 40-year recertification process and the roof was being redone. It is unknown if the construction activity contributed to the collapse.         40 years is a long time for a building to be around, especially when in close proximity to the ocean, and given the constant and evolving changes...

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