Last month, we published a CAN Alert that discussed fire sprinkler retrofitting for condominiums. We received lots of questions regarding the requirements, which is understandable because the statute can be confusing. (To read the fire sprinkler CAN Alert from last month please go HERE).
Here are answers to some of the questions we received:
I can’t find the statute section you are referring to. Can you please clarify?
The statute section for fire sprinkler retrofitting is 718.112(2)(l) – “l” like the letter in Lucy. For your reference, we provided the complete 2016 statue at the end of the alert.
Do condominium buildings that are below 75 feet need to comply with these requirements? I thought this statute only applied to “high-rise” condominiums.
We often hear the statement that “condos less than 75 feet do not need to opt out” of the requirements because low rise condos do not require a fire sprinkler system pursuant to the Fire Code. Yes it is true that “low rise condos” (building that are less than 75 feet) are not required to have a fire sprinkler system pursuant to the Fire Code, but the fire sprinkler retrofitting statute still requires low rise condos to have their membership vote and formally opt out of the retrofitting requirements prior to December 31, 2016.
Not surprisingly, board members and fire marshals have been confused about the retrofitting opt-out requirements for low rise condos. It is likely that this information came from the 2009 wording of the statute. In 2009, the fire sprinkler retrofitting statute did contain language that stated that high-rise condos could not opt-out of the retrofit requirement. But that wording was deleted in 2010. Adding to the confusion is the fact that the current Florida Building Code (Section 553.895(2)) talks about the installation of fire sprinkler systems in condo buildings over 3 stories that were constructed after January 1, 1994. However, neither of these statutes provide an exception to the requirement that regardless of height or floors, condos must obtain a membership vote to waive the fire sprinkler retrofitting requirements for the buildings in which the units are contained or for any common area or association controlled owned amenities. Now all condominium associations need to consider and address this requirement.
So in summary, all condominiums (both low and high rise) must comply with the fire sprinkler retrofitting requirements by taking a membership vote and reporting the outcome to the Division of Florida Condominiums, Timeshares, and Mobile Homes before December 31, 2016.
Does this statute and the retrofitting requirements apply to Cooperatives as well?
Do these fire sprinkler retrofitting requirements apply to commercial condominiums?
No. Although Chapter 718 generally applies equally to residential, mixed use, and commercial condominiums, the fire sprinkler retrofitting statute, is one exception where “residential condominiums” are treated differently from “non-residential condominiums”. Throughout the statute section, the retrofitting requirement is limited to “residential condominiums.” So if your complex or building is made up of 100% commercial condominiums, we do not believe that the retrofitting requirement would apply to a purely commercial development. You should also look to the association’s governing documents to verify whether the documents specifically provide and identify the development as a “commercial” or “non-residential condominium.”
If your building has any aspect of mixed use (even if there is only 1 residential unit within the building), we advise that you should follow the statute and make sure the association’s official records show compliance with the retrofit opt-out requirements. To determine whether a unit is residential, several factors are considered by arbitrators within the Division of Condominiums, including but not limited to: (1) whether a homestead exemption can be taken for the unit; (2) what the zoning for the development is; and/or (3) whether the unit is used as a “private temporary” or “permanent residence.”
Are the common areas, association properties, and amenity buildings owned by the association included in this requirement?
Yes, unless the requirement is properly waived by a vote of the membership per the statute. These areas include bath houses, meeting rooms, club houses, guard houses, etc. The question of whether a fire sprinkler system SHOULD have been installed in your particular condominium development is a question that may be subject to existing state, county and municipal laws and codes and should be referred to your community association counsel for review.
Do you have any tips for ensuring the members of my association will cast a vote on this issue?
One of our CAN members told us that they included a self-addressed, stamped envelope for their members to mail in their vote and that this proved to be very successful. By providing their membership with pre-stamped return envelopes, they were able to get back 86% of the proxies as opposed to the usual 25% they receive from annual election ballots.
What happens if my association does not obtain the required majority approval to forgo the retrofitting?
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. A consultation with a licensed Florida contractor and local building/fire department officials, is recommended regarding the specific requirements of the condominium retrofit.
You provide great information but we are still confused about whether we need to opt out of the retrofitting requirements and file a report with the Division. What do we do?
When in doubt about any of these requirements, please contact your management company and/or attorney for your association.
Thank you for all of your questions. Here at CAN, we pride ourselves on providing you with answers to the difficult and confusing issues that are unique to community associations. We hope you found this information helpful.
1. Certificate of compliance -A provision that a certificate of compliance from a licensed electrical contractor or electrician may be accepted by the association’s board as evidence of compliance of the condominium units with the applicable fire and life safety code must be included. Notwithstanding chapter 633 or of any other code, statute, ordinance, administrative rule, or regulation, or any interpretation of the foregoing, an association, residential condominium, or unit owner is not obligated to retrofit the common elements, association property, or units of a residential condominium with a fire sprinkler system in a building that has been certified for occupancy by the applicable governmental entity if the unit owners have voted to forego such retrofitting by the affirmative vote of a majority of all voting interests in the affected condominium. The local authority having jurisdiction may not require completion of retrofitting with a fire sprinkler system before January 1, 2020. By December 31, 2016, a residential condominium association that is not in compliance with the requirements for a fire sprinkler system and has not voted to forego retrofitting of such a system must initiate an application for a building permit for the required installation with the local government having jurisdiction demonstrating that the association will become compliant by December 31, 2019.
2. 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. The association shall mail or hand deliver to each unit owner written notice at least 14 days before the membership meeting in which the vote to forego retrofitting of the required fire sprinkler system is to take place. 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.
3. If there has been a previous vote to forego retrofitting, a vote to require retrofitting may be obtained at a special meeting of the unit owners called by a petition of at least 10 percent of the voting interests. Such a vote may only be called once every 3 years. Notice shall be provided as required for any regularly called meeting of the unit owners, and must state the purpose of the meeting. Electronic transmission may not be used to provide notice of a meeting called in whole or in part for this purpose.
4. As part of the information collected annually from condominiums, the division shall require condominium associations to report the membership vote and recording of a certificate under this subsection and, if retrofitting has been undertaken, the per-unit cost of such work. The division shall annually report to the Division of State Fire Marshal of the Department of Financial Services the number of condominiums that have elected to forego retrofitting.
5. Notwithstanding s. 553.509, a residential association may not be obligated to, and may forego the retrofitting of, any improvements required by s. 553.509(2) upon an affirmative vote of a majority of the voting interests in the affected condominium.