Code Violations are on the Rise – Associations Need to be Aware and Prepared
Never underestimate the seriousness of a visit from your local code enforcement inspector. Ever since the Surfside tragedy, we have seen an exponential increase in the number and scope of violations being issued by both City and County code enforcement inspectors. This is not surprising given that the primary purpose of the Florida Building Code is “to establish the minimum requirements to provide a reasonable level of safety, public health and general welfare.” However, we are seeing a growing number of violations for items that may not seem to fall within the category of causing “life safety” concerns.
As an example, consider if your pool vendor were to change out your failing pool pump without first providing all the required documentation to the Florida Department of Health (FDH). In the past, this type of seemingly minor violation for a non-life-threatening exchange of pool equipment, potentially only documentation based, was simply cited by a communication from the FDH indicating the nature of the violation and requiring compliance within a specified, typically reasonable period of time. However, in our current environment, at least in the City of Miami, these types of violations are now referred by FDH to the City of Miami Unsafe Structures Division for violation enforcement. What happens next is a visit to the association’s property by an unsafe structures inspector where the violation is confirmed, documented, and photographed. Next, the Division will typically issue an unsafe structures violation notice and/or a Notice of Hearing in front of the City of Miami Unsafe Structures Panel. These notices, which are posted on the door of each and every residential unit within the association’s property, indicate an “Unsafe Structure Violation,” identify the property, code sections that were violated, describe the violation briefly, recommend bringing the property into compliance and typically include the statement “You are, therefore, requested to repair or demolish this structure.”
You can imagine the effect that reading such a notice will have on your membership. Then add to that the fact that the City also has the right to attach the violation to the association’s property folio, which the City usually connects not just to the association’s management office, but also to the unit of the board president. Finally, while the Unsafe Structures violation is open, no permits can be submitted to the City for any intended or pending project without the City first agreeing to temporarily lift the violation hold on the association’s entire property.
The pool pump situation described above is not just a hypothetical, but actually occurred and required the association to involve its pool vendor, an engineer, a permit expeditor, legal counsel, many hours of their property management staff’s time, and attendance of these parties along with Board members in front of the City of Miami Unsafe Structures Panel for a hearing to address the violation. This may not be the case for all jurisdictions, as violations may be addressed differently depending on where your property is located. The State is currently still reviewing and amending new guidelines so as to bring a degree of uniformity to these procedures.
While above violation may also seem to an outside observer to be an overreaction in the application of local code provisions, we must recognize that local municipalities often have an overwhelming number of violations to address. Code inspectors are charged with investigating, documenting, and citing these violations, but they often cannot make a determination, barring an extreme and obviously dangerous situation, as to which violations may pose an actual risk to life, safety and wellbeing of residents, and so they have to treat every violation as potentially dangerous without additional expert investigation. Local authorities may also defer to a private engineer, hired by the association, to ultimately make a determination regarding whether the building is safely habitable. Hiring qualified engineering professionals and performing this investigation is usually the responsibility of the association. If the association is aware of an actual or possible code violation, the Board should not wait until the Code inspector shows up at the property.
Failure to address known violations could lead to fines, liens, and in a worst case scenario, the dreaded “red-tag” of a building, where the city could order that the building be evacuated or more likely, that certain portions of the property cannot be used until the violation is corrected. In addition, in the context of litigation, pending violations could be used as evidence in support of claims brought against an association. This is another reason why the retention of qualified, licensed and insured contractors is paramount for any association.
Along those same lines, the association should ensure it has legal counsel who is familiar with the intricacies of addressing code violation matters and ideally also acquainted with the municipal personnel responsible for addressing these violations. Assistance from competent counsel can help avoid a pending code violation from becoming an even bigger headache, in the form of significant fines, liens, or the unnecessary condemnation of part of or the entirety of your property.