Will Aventura’s New Law Help Condominium Owners or Simply Expose them to Liability?
The City of Aventura’s recently passed an Ordinance, which represents an effort to regulate structural oversight for community associations in the aftermath of the Champlain Towers tragedy in Surfside. The Ordinance requires community associations, including condominium associations and homeowners’ associations, to share all engineering, architectural, and life-safety reports that are conducted on a building with the City, which in turn is supposed to make these reports available for public viewing on a government-run website. The new law imposes this requirement on the “Responsible Person,” which is defined as the President of a community association, a property manager, or a qualified person designated by the President. The new law dictates that the Responsible Person charged with turning over these reports to the City must do so within forty-eight (48) hours of receipt. If that deadline is not met, the City may impose daily fines of up to $500, as well as up to 60 days in prison for the party responsible to turn over the reports. Each day that the responsible party fails to share the reports constitutes a separate offense.
The goal of improving overall the safety of buildings in Aventura to avoid injury to residents is commendable, and clearly, publication to the City of these reports on a more rapid basis is needed. However, the Ordinance is simply not balanced with the realities that face Board members, particularly when a majority of the directors hold office on a volunteer basis. While stricter laws with respect to condominium safety and transparency are beneficial and necessary, Aventura’s Ordinance is extremely harsh and may lead to some unintentional consequences.
First, the Ordinance’s 48-hour deadline is impractical, as well as seemingly arbitrary. While the City has stated that technology makes it viable to share reports quickly, this is still a very tight turnaround time, with severe penalties if the deadline is not met. What if a report is received on a Friday night by an association manager or Board President, who will not see his or her e-mail until Monday morning? What if the Responsible Person required to transmit the report to the City is on vacation, or handling a family emergency, and not checking e-mails? There are any number of real-life scenarios that could impede someone from reaching their email and forwarding the same within 48 hours. Certainly, there should be a deadline contained in the Ordinance, but a strict 48-hour time limit will be difficult to meet for many associations, and provides negligible, if any, benefit as compared to an expedient but more reasonable deadline, such as five (5) or seven (7) business days. Community Association Board members are volunteers who are not paid, and many have jobs. The harsh penalties, including criminal penalties associated with missing the Ordinance deadline, could very well serve to deter members from volunteering to serve on the Board in the first place – – which will have a deleterious impact on association operations and oversight of management by the board of directors.
Furthermore, the Ordinance fails to contemplate that the engineers writing these reports have separate obligations to the general public regarding public safety—such that, if a building is truly dangerous with respect to fire, electrical or structural safety, the engineer should immediately notify the City’s building official or fire marshal, independent of the new obligation from the Ordinance upon the association for whom the report was written. That entire concept is simply missing from the Ordinance, and the reality is that such a requirement by the engineer would obviate the need for the condensed 48-hour time frame for the association’s Responsible Person to deliver the report.
The Ordinance also presents potential due process issues, as there is no indication of the process to appeal the imposition of a fine or jail sentence. This is especially an issue because there is no specific guidance as to what qualifies as a “report” that must be turned over to the City. Is a letter regarding a condition at the building a “report,” is a report required to be delivered if it references issues that are not of immediate life-safety concerns, but if unaddressed will lead to potential risk down the road. Without a specific avenue to contest the association’s obligation to provide a report subject to the Ordinance, the association is left without clarity as to how it should proceed, and at what risk.
In addition to the timeframe for report submission, the Ordinance fails to provide any exceptions for types of reports that should not be made public, such as draft reports that are still in progress, and reports that are created in anticipation of litigation that does not have an immediate life safety threat, which can impede the association’s attorney-client and work-product privileges. The Ordinance appears to override the state condominium act, Chapter 718, where certain protections exist for the attorney-client privilege as well as the work-product doctrine.
While the purpose behind the new Aventura Ordinance is commendable, the Ordinance does raise the above-referenced issues which are likely to cause their own problems, such as deterring competent Board members and professionals from taking action to investigate the condition of their buildings. Strangely, the Ordinance does not require any additional testing or inspections, but just delivery of reports issued. The City’s goal to protect and inform its residents may be better served in fostering transparency and accountability by requiring regular and more frequent inspections, requiring that the remediation work commence within a certain time frame, and requiring the engineer to certify the building as safe as part of the report. However, as it currently stands, the Ordinance imposes heavy burdens and penalties for not meeting unclear standards and unreasonable deadlines and fails to take into account the practical realities many community associations face in their operation, administration, and management.
About the Author
Deesha Smart is an associate attorney who concentrates her practice in the areas of complex business and condominium litigation.