Wednesday, August 24, 2016

Condo/Coop Retrofitting Fire Sprinklers - The Lowrise Debate Rages

In 2010, the Florida legislature changed Florida Statute Section 718.112(2)(l) to amend the rules regarding the requirement for retrofitting of sprinklers in condominium (and cooperative buildings under 719.1055(5)(a)).  The change removed the following key provisions:

For purposes of this subsection, the term "high-rise building" means a building that is greater than 75 feet in height where the building height is measured from the lowest level of fire department access to the floor of the highest occupiable story. For purposes of this subsection, the term "common areas" means any enclosed hallway, corridor, lobby, stairwell, or entryway. In no event shall the local authority having jurisdiction require completion of retrofitting of common areas with a sprinkler system before the end of 2014.

          This change has sparked a controversy as to whether all condominiums are now required to either retrofit sprinklers or vote to waive retrofitting no later than December 31, 2016.  This change was intentional and by doing so the legislature specifically intended the law to apply to all condominiums, not just high-rises.   As this is state law, it trumps any local limitation or requirement which would limit or not require such installation for condominiums under seventy-five feet in height.        

The starting point for compliance is the Division of Florida Condominiums, Timeshares, and Mobile Homes, the state body that regulates condominiums.  In its written statement on the issue the Division has stated that:

Condominium and cooperative associations are required to report to the division certain information regarding the membership vote to waive retrofitting requirements for fire sprinkler systems and handrails and guardrails. If the association does not waive retrofitting requirements, it must report the per unit cost of retrofitting to the division

The Division makes no distinction between high rise and low rise condominiums.  As a result of the change in the law and the Division not ruling that the law does not apply to condominiums below seventy-five feet in height, it means that absent a change, all condominiums and coops must either vote to waive retrofitting or start the retrofit process by the end of the year and report their actions to the Division.  As late as early July, 2016 Travis Keels, deputy director of communications for the Florida Division of Condominiums stated, “Generally speaking, the fire sprinkler requirement applies to all residential condominiums.”

However, due to contradictory laws relating to low rise sprinklers, there are now many voices asserting claims that the law does not actually require retrofitting for low rise condos/coops.  The Florida State Fire Marshall issued a statement saying that: “The Florida Fire Prevention Code… requires only high-rise buildings that do not have exterior access from each dwelling unit to be protected throughout by an approved, supervised automatic sprinkler system.”  However, the Fire Marshall also recognized that their office “…cannot interpret the provisions of Chapter 718.112, Florida Statutes.”

Senator Jerry Ring, a sponsor of the 2010 legislation that changed the law, has also commented on the issue.  He stated, in a letter dated July 28, 2016, to the Director of the Division of Florida Condominiums:

It is regrettable that the Division’s “interpretation” of a 6 year old statutory amendment comes to light through a newspaper quotation a mere 5 months before the opt out deadline expires, and at a time of year when many communities have difficulty conducting business (let alone owner votes) due to seasonal absences. While I recognize that the comments made were undoubtedly in good faith, they are simply an incorrect interpretation of legislative intent. Due to the amount of concern that this newspaper quote has generated, especially in light of its timing, I am requesting that the Division issue a press release consistent with the intent of the Legislature.

          The problem is while the letter is well meaning, it is not a change in the law, merely one legislator’s interpretation of the intent of the law.  Therefore, we are recommending that all condominiums and coops start the process to waive retrofitting by either a member meeting or a written consent to action. 

The written consent allows for votes to be collected from local and absent owners by signing a written statement voting to waive retrofitting.  Interestingly, the Division allows even Associations that do not have express power to approve matters by written consent to use this process, “Voting by written consents or written agreements may be utilized by an association regardless of whether the bylaws or the declaration specifically permit voting by written consents or written agreements.”  In order to waive the costly installation, the vote must be made by the “affirmative vote of a majority of all voting interests in the affected condominium.”  Now is the time act, as sufficient votes to waive must be received no later than the end of the year.

Michael Posner, Esq., is a partner in Ward Damon a mid-sized real estate and business oriented law firm serving all of South Florida, with offices in Palm Beach County.  They specialize in real estate and can assist community associations in all legal matters including retrofitting votes. They can be reached at 561.594.1452, or at