Protecting Your Condo or Coop Residents: What Association Boards Should Know

by | Aug 6, 2021 | Firm News |

The Surfside, Florida, building collapse which killed at least 97 people to date, has raised a lot of questions about where the responsibility lies. And while structural engineers are only starting to put their investigation into high gear after the search teams have completed their mission, the disaster is already raising many questions among condo residents and Association Boards alike – especially the key question: “Can what happened in Surfside happen to our building, too?”.

Here are 10 common sense steps Condo, Coop and Home Owners Association Boards should take to protect their residents and property:

1. Review your Association’s governing documents regularly to make sure what Common Elements and Limited Common Elements the Association is responsible for overseeing, repairing and maintaining and determine what maintenance and repairs the Associations is responsible to pay for. It is always good to consult with a qualified association attorney to review the governing documents and determine whether they need to be strengthened or revised.

2. Visually inspect your buildings and structures regularly, and, if you see something concerning, be sure to engage a professional, either a structural engineer or architect, to review any issues of concern. Trust your reasonable impressions; if it looks like a problem, it is worth looking into.

3. Be sure to comply with all local building department requirements in your jurisdiction to have your building inspected or certified.

4. It is good practice to, at least every 10 years (if not sooner), engage an engineer to review your building’s roof, facade, vault spaces, areas around or below pools, balconies, patios and other areas susceptible to water infiltration and have a report prepared concerning the professionals’ findings together with an action plan.

5. If your Association’s professionals determine that capital improvements are necessary to ensure the structural stability of your buildings or improvements, take heed of those findings and then take decisive, timely steps to address them.

6. If necessary, to protect the building and more importantly, the safety of unit owners and other occupants, fiscally plan for capital improvements by having a healthy reserve fund for the Association. Do a reserve study to make sure your Association is prepared for unexpected expenditures. An Association’s reserve study, which should be based on an on-site review of the Association’s property every five years, should itself be updated annually to account for unexpected costs and new capital improvements.. On average, most Boards should be setting aside approximately 20-40 percent of their annual assessments toward reserves to ensure the future financial health of the Association.

7. When necessary, special assess the unit owners to pay for emergent repairs. While it is often difficult to convince unit owners to incur increased costs, when your professionals tell you of an emergent condition with your building, you must grant the weight to those statements they deserve. Honesty is usually the best policy. When an emergent building issue presents itself, after consulting with counsel, it is usually a good idea to explain the condition to the unit owners and advise why a special assessment is needed.

8. Review your Association’s General Liability and Directors and Officers (D&O) insurance policies with your insurance broker to see how a “collapse” is defined and whether there are any exclusions to the policy that would preclude future recovery. Also, make sure that you have a D&O policy that properly protects all directors and officers against personal liability for decisions they make as Board Members.

9. Always be guided by “reasonableness” and sound business judgment. Act for the benefit of all unit owners and do your best to keep your buildings and other structures in good and updated condition.

10. Take note of unit owner concerns. If unit owners are complaining of ongoing conditions, strange noises, leaking walls and floors, windows that no longer open, doors and walls that are no long plumb, unexpected cracking in structural components, etc., make sure to inspect these conditions in a timely manner and hire competent professionals to follow up when it makes sense to do so.

Typically, when a Board acts reasonably and with the safety of all residents in mind, it is hard to fault its logic. Almost all building issues can be addressed before they become major problems by the Board Members being attentive, listening to unit owners and consulting with qualified professionals. A well-reasoned approach based on sound business judgment is the key to ensuring that small problems don’t become larger ones and that the Association does not incur unnecessary liability later on.