By: Christopher M. Cobb, Esq.
In 2003, the Florida Legislature enacted 718.112(2)(l) as a statutory scheme to require the retrofitting of fire sprinklers for residential condominiums. The statute first began specified that the condominium association may not vote to forego such retrofitting with a fire sprinkler system of common areas in “high-rise building” which was defined as “greater than 75 feet.” That language remained consistent in the statute until 2010. However, in the 2010 statute revision, the language referring to “high-rise” buildings “greater than 75 feet” in height was completely removed from the statute. Now all condominium association need to consider and address this requirement. A discussion on fire sprinkler retrofitting is the subject of this blog post.
Due to the significant expense typically required to retrofit a condominium and in recognition of the significant burden this would place on the unit owners, changes to the Condominium Act (Chapter 718 of Florida Statutes) allows an association to vote to “opt-out” of the requirement to retrofit the fire sprinkler system that services the condominium, including the common elements, association property, and the units. Specifically, Section 718.112(2)(l) Florida Statutes, allows an association to vote to forego the retrofitting of the fire sprinkler system for the common elements and units upon the approval of a majority of the entire membership (i.e. 51%). The vote may be undertaken at a duly-noticed membership meeting, or via the written consent process in lieu of having a membership meeting.
If a membership meeting is held, the Statute requires 14-day advance written notice be sent to the entire membership via mail or hand-delivery. A vote to forego retrofitting may be obtained by limited proxy or by a ballot personally cast at a duly called membership meeting, or by execution of a written consent by the member, and is effective upon recording a certificate attesting to such vote in the public records of the county where the condominium is located. Within 30 days after the association’s opt-out vote, notice of the results of the opt-out vote must be mailed or hand delivered to all unit owners. Evidence of compliance with this notice requirement must be made by affidavit executed by the person providing the notice and filed among the official records of the association. After notice is provided to each owner, a copy must be provided by the current owner to a new owner before closing and by a unit owner to a renter before signing a lease. Finally, if (and when) the retrofit “opt-out” vote is undertaken, the Statute requires the association to report the results of the vote to the Division of Florida Condominiums, Timeshares, and Mobile Homes.
In the event that a condominium association does not obtain the required majority approval to forego the retrofitting (or otherwise chooses to not present such issue to the membership), the association must submit a building permit application with the applicable local governmental authorities on or before December 31, 2016 regarding the intent to comply with the applicable fire/life safety codes. The completion of any such retrofit is not required until December 31, 2019 under the current provisions of the Condominium Act. Consultation with a licensed Florida contractor, as well as your local building/fire department officials, is recommended regarding the specific requirements of the condominium retrofit.
If an association obtains a valid vote to forego retrofitting as described herein, the unit owners also have the ability to vote to rescind the earlier “opt-out” vote, and to proceed with the retrofit of the fire sprinkler system if a Special Meeting of the Membership is called by a petition of 10% of the membership, and a majority of the membership again votes affirmatively, this time in favor of rescinding the prior decision. This Special Meeting/Vote may only be called once every three (3) years.
Whether your association opts-out of the fire sprinkler retrofits, community association leaders should have a plan in place for fire prevention and evacuation. Please answer the following questions for yourself and for the benefit of the residents of the condominium association/community in which you live:
- Do you have a fire emergency/evacuation plan and have you tested that plan?
- Have residents and employees been given full instructions on the details of the plan?
- Can the buildings be evacuated to the street without interfering with emergency personnel?
- How will you handle physically challenged residents during an evacuation?
- Are all exit doors and exit-ways clear?
- Are emergency facilities in place and functional?
- Have you tested your fire alarms?
As the deadline for opting out of the otherwise mandatory retrofitting of Florida condominiums is approaching, boards of directors, community association managers, as well as unit owners, that have not yet taken this action should be discussing the options that are available and planning accordingly. For any questions that may arise, it is also recommended that the board consult with the association attorney throughout the process to ensure compliance.