Your Condominium Building is Probably Not Going to Collapse but Ignoring or Delaying Needed Repairs and Maintenance Could Be Problematic and Expensive
The 2021 structural failure and collapse of a building at Champlain Towers, a 12-story condominium in Surfside, Florida, has reverberated in condominiums all over the country. Owners of condominium units looked at the rubble where that building had stood and wondered: “Is my building going to collapse and what can we do to avoid that risk ?”
While the investigation of the Surfside disaster is still ongoing, it will almost certainly identify many factors that ultimately led to the collapse of the Champlain Towers building, among them: Design flaws, construction deficiencies, structural weaknesses, erosion, and the degradation of building materials. Fortunately, this combination of serious problems in a single condominium is rare. However, news reports have identified one contributing factor that many condominium communities have in common with Champlain Towers ─ ignoring or avoiding necessary common area maintenance and infrastructure repairs . While Surfside may not constitute a screeching ‘hair-on-fire’ alarm, warning condominium boards that their buildings are about to collapse, it is a bright yellow light flashing a caution that board members and unit owners should heed: “You ignore or delay necessary common area maintenance and repair at your peril (and your expense).”
A Common Denominator
The message isn’t new. As an attorney who advises condominium boards on contracts and other issues related to condominium construction projects, this is something I’ve been telling my clients for decades. It is the essential lesson that condominium board members and unit owners should take from the Champlain Towers disaster.
News reports indicate that the building had long suffered from the deterioration of reinforced concrete, steel structure and other critical components that went unrepaired, despite the advice of many engineers and other design professionals who had identified the problems and urged the board to address them. Unable to obtain the required consent of unit owners, several boards delayed those essential infrastructure repairs; the deterioration continued unabated for years, ultimately resulting in or at least contributing to the building’s collapse.
This is an all-too-common pattern. Like patients who ignore their high blood pressure because addressing it requires lifestyle adjustments they don’t like, many condo associations defer maintenance and/or repair projects because owners and board members object to the expense associated with these projects. This position is, neither sensible nor cost-effective. Deferring maintenance and necessary repairs ─ignoring the advice of engineering or other consultants ─can turn minor problems into major headaches and turn simple, affordable repairs into complex, costly construction projects requiring outsized assessments. In the extreme, deferred maintenance/repairs may be catastrophic.
Just as a friend’s heart attack could be a wake-up call to someone who has high blood pressure, Surfside may be a warning to condominium associations that have not been sufficiently attentive to building maintenance and repairs or as proactive as they should have been in dealing with them.
Since the Surfside tragedy, we have received numerous calls from board members, property managers and unit owners wondering how they should respond. This summarizes the questions they are asking and the advice we are giving them:
1. Should all condominium buildings be inspected? Unless your building is very new or has recently undergone an inspection, an inspection is probably a good idea. The older the building, the stronger the argument for a thorough inspection by a licensed professional engineer. This analysis may confirm that your building is structurally healthy, or it may identify issues that are not yet apparent but will have to be addressed – such as the deterioration of the steel reinforcing and concrete in structural support beams that very likely played a significant role in the Surfside collapse. The key, of course, is not just to commission a report, but to act on its conclusions and on the advice of your engineer and design professionals.
That said, you won’t necessarily have to address every issue the inspection report identifies or complete all the repairs an engineer may recommend. Some items may require immediate action; some may require ongoing monitoring; others may not require any action at all. The engineer who performs the inspection should be able to help you prioritize any necessary repairs and maintenance that your condominium building requires.
Even if you don’t act immediately on those findings, you shouldn’t ignore the recommendations of your engineer or design professional or delay the work they recommend because of its potential cost. You should also be realistic about the work professionals recommend. Boards often have a tendency to underestimate the importance of some maintenance tasks or the complexity of some repair projects.
Many board members have told me that they decided they didn’t have to pay an engineer to do the design and construction specifications for a substantial building envelope (walls, roofs, windows, etc.) project, because “it’s just the siding” or the roof or the walls…. .” That’s like deciding you don’t need a surgeon to operate on your leg because ‘it’s just a leg.’
Most condominium documents require the board to maintain and repair the common areas and facilities – a broad category that almost always includes most of the building’s envelope and its infrastructure. This is a fiduciary obligation that boards should take seriously. They should give maintenance and repair duties the attention and resources they deserve. They should avoid the penny-wise-pound-foolish decisions that will inevitably cost the association more in the long run and may have more, serious and potentially tragic consequences.
2. How often should we have our buildings inspected? That depends on the age, condition, and the stresses to which the buildings are exposed. A 25-year-old ocean-front building exposed to corrosive salt water should likely be inspected more often than a five-year-old structure located in an inland suburb. A building dealing with sporadic leaks should be inspected more often than one that just had its roof replaced. A building with known structural problems may require annual inspections focusing on the areas of concern. An engineer can provide the best advice on the inspection schedule that makes sense for your community. I wouldn’t be surprised if the Surfside disaster doesn’t lead many communities, state legislatures, or both, to impose fairly rigorous inspection requirements on condominium communities. Mandatory or not condo associations would be well-served by implementing a reasonable inspection protocol.
3. Is it sufficient that we have a reserve study or do we also need to have an engineer inspect the building(s)? While having a reserve study is essential, it simply isn’t a substitute for a building envelope/structural inspection. The reserve study will estimate the useful life of critical components and project the reserves the association will need to finance those eventual repairs and replacements while an engineering study assess the condition of critical building components and identify structural weaknesses, design flaws, or material deficiencies that you may need to address immediately.
4. Can board members be personally liable for any problems that result because they fail to maintain the condominium building or make necessary repairs? Applicable law provides considerable protection from personal liability for condominium board members, but they could potentially be personally liable for their gross negligence or intentional misconduct (depending on what the applicable condominium documents provide). As long as you act in good faith and exercise due diligence in the performance of your fiduciary duties─ including obtaining and following the advice of appropriate experts ─ you aren’t likely to be found personally liable for damages. Of course, if deferred maintenance results in more expensive repairs, all owners will share those costs. And if someone is injured or killed as a result of that decision, while board members may not have personal legal liability for that outcome, they would bear some personal responsibility for it, which might be hard to live with.
It’s important to note: While board members are unlikely to face personal liability for their maintenance and repair decisions – or indecision ── condominium associations will almost certainly be in the legal cross hairs if they fail to adequately maintain common areas. Not surprisingly, former residents of Champlain Towers have filed a class action suit seeking damages from that homeowner’s association. Of course, the association consists of its owners, so owners who sue their association are ultimately really suing themselves. Two takeaways for owners: Think carefully before opposing board decisions to incur necessary maintenance and repair expenses; and make sure the association has adequate insurance to cover any potential liability for board members.
5. What should a condominium association board do if owners object to repairs board members think are essential? The governing documents of most associations give the governing board substantial authority to control common areas and the exclusive responsibility to repair and maintain them without the need to consult the unit owners. Owners may have opinions about whether some repairs or maintenance projects are needed, but they don’t typically have a vote on these questions – unlike the owners of units at the Champlain Towers condominium. The board, on the other hand, has a fiduciary obligation to repair and maintain the condominium common areas and facilities, even if that means undertaking projects unit owners may vocally oppose and incurring costs and expending funds to which many unit owners may object. These political battles can be intense and unpleasant, but they are part of the job that board members volunteered to undertake and a major reason it is so difficult to find unit owners willing to serve on the boards of many associations.
Board members should try to be transparent about decisions to undertake significant repair and maintenance projects. They should attempt to explain to owners –─ or, better still, have the engineer explain ─ the need for major repairs . Boards should listen to unit owners and, to the extent possible, consistent with the board’s fiduciary duties, they should be sensitive to owners’ concerns. For example, boards can look for ways to manage the costs of an expensive project. Doing necessary repairs and maintenance in phases or obtaining an association loan may ease the financial burden on individual owners. But at the end of the day, board members have to do what they think is right, using their best judgment, based on the advice they receive from engineers and design professionals and from their attorney.
Written by
John E. Shaffer