Monday, September 13, 2021

Residents High-Rise Condominiums Seek Industry Guidance following Tragic Surfside Collapse

David M. Rogers

A call to action is often spurred by tragedy. The collapse of a South Florida residential building has caused many Boston condominium boards to question whether their particular high-rise buildings are at risk, and what they can do to prevent a similar disaster. Many board members have been surprised to learn that the burden of ensuring the structural integrity lies with them – as there are few states or city regulations in place to address these concerns. As the condominium industry reacts to the Surfside collapse, it is becoming apparent to most high-rise condominium boards that they must take proactive measures to protect the life safety of their unit owners.

Boards at Massachusetts high-rises would be well advised to begin devising long-term strategies for prioritizing the structural integrity of their buildings.

As we all know, the twelve-story Champlain Towers South condominium in Surfside, Florida collapsed last June– killing 98 people and injuring 11. Degradation of concrete structural support in the building, due to long-term water penetration and corrosion of the steel, is the main factor suspected for causing the collapse.

In response to the Surfside tragedy, the Community Associations Institute (“CAI”) has assembled task forces comprising more than 200 highly qualified and experienced people. More specifically, CAI’s Government Affairs Committee appointed three task forces focused on (i) building inspections and maintenance, (ii) reserve study and funding plans, and (iii) insurance and risk management. The CAI task forces are expected to produce their draft public policy statements and best practices guidelines shortly after the 2021 CAI Annual Conference & Exposition, which just concluded in Las Vegas. CAI is working to move the drafts to approval by the CAI Board of Trustees quickly – hopefully by October. Many state and federal legislative bodies and public agencies are eager to include the CAI public policy statements when drafting related legislation.

H. Alan Mooney, P.E., a licensed professional engineer with over four decades of experience in engineering-related services, is one of the professionals serving on CAI’s task force for building inspections and maintenance. Mooney is the Founding President of Criterium Engineers – a national consulting engineering firm with more than 40 offices throughout North America.

“The structural health and future of any building depends on many variables including age, climate, maintenance, structural materials used, renovations that have occurred, quality of construction, original design and much more,” said Mooney. “No building will last forever,” he said.

According to Mooney, mid- and high-rise buildings in Massachusetts should be subject to regular inspections.

“In my opinion, all buildings of more than five stories should be thoroughly inspected by well qualified individuals for structural soundness regularly – every ten years for buildings less than fifty years old and every five years for buildings more than fifty years old,” he added.

There are more than 300 buildings in Boston that are at least five floors tall that are zoned, at least in part, for residential use. Boston also has some of the oldest residential structures in the nation. Furthermore, Boston’s high-rise buildings – just like the Surfside condominium – sit in close proximity to the Atlantic Ocean. As such, saltwater corrosion of both concrete and rebar are legitimate concerns. Unfortunately, there are no real regulations – from either the state or the city – requiring regular structural inspections of Boston’s taller residential buildings. This is something that the industry would like to see change.

CAI’s task force for building inspections and maintenance is expected to recommend regular structural evaluations of mid- and high-rise buildings by licensed structural engineers. These evaluations are to be separate from any transition or reserve study. The results of the inspections will be shared with the board and, if safety issues are identified, with municipal authorities.

CAI’s task force for reserve study and funding plans is expected to recommend mandatory studies, the results of which must be shared with unit owners. Many participants on the task force believe that boards were not taking action when given important information about the condition of their facility.

Unfortunately, that may have been the case at the Surfside condominium. Morabito Consultants – a consultant hired by the Champlain Towers South association in 2018 – warned of “major structural damage” below the pool deck of the Miami Beach-area building. Its report provided that “[f]ailure to replace the waterproofing in the near future will cause the extent of the concrete deterioration to expand exponentially.” Less than three months before the collapse, the association’s president warned that the damage in the building had gotten “significantly worse.”

The Champlain Towers South condominium association has come under scrutiny for the apparent failure to take timely action in response to the 2018 report. As the Surfside condominium collapse has drawn national attention, many local condominium boards have been wondering what their obligations would be if they were similarly presented with an alarming report concerning potential catastrophic life-safety issues plaguing their high-rise building. Would a board need to immediately notify the building’s residents? Would a board need to issue a multi-million-dollar assessment to repair deficiencies?

Trustees must perform their duties in good faith and in a manner, they reasonably believe to be in the best interest of unit owners, and with such care as would be used by an ordinarily prudent person in like circumstances. Harris v. McIntyre, (2000). The exercise of discretion by a condominium board, under the Condominium Act and the constituent documents of the condominium, must be “reasonable.” Garland v. Wolf, (1995). Generally speaking, a condominium association owes a duty of reasonable care to all persons lawfully on the condominium property. Soederberg v. Concord Greene Condominium Ass’n., (2010). This duty includes an obligation to maintain the condominium property in a reasonably safe condition for residents and other lawful visitors. Accordingly, a condominium board would be expected to act reasonably when presented with a report warning of potentially disastrous issues. Such reasonable actions would likely include warning the condominium’s residents and exploring the feasibility of repairs.

The Champlain Towers South condominium association had approved a $15 million assessment in April to complete repairs required under the county’s recertification process for buildings over 40 years old. Unit owners were scheduled to begin making payments a week after the building collapsed. Assessments ranged from $80,190 for one-bedroom units to $336,135 for the owner of the building’s four-bedroom penthouse. In light of such lofty assessments, one wonders whether high-rise condominiums will need to begin better budgeting for major structural repairs in their reserves.

While hindsight is always twenty-twenty, it is apparent that more urgent action should have been taken in response to the 2018 engineering report issued to the Champlain Towers South board. Indeed, where a report explicitly warns of “major structural damage”, it seems unfathomable that ninety-eight people should lose their lives two years later – after little, if any, action had been taken to address structural issues within the building.

CAI’s task forces will hopefully provide meaningful guidance to the many Boston condominium boards looking to avoid a devastating tragedy like the Surfside collapse. Regular inspections performed by qualified structural engineers will undoubtedly be part of the solution going forward. Boards at Boston high-rises would be well advised to begin devising long-term strategies for prioritizing the structural integrity of their buildings.

An associate at the Boston and Quincy-based firm of Moriarty, Troyer & Malloy LLC, Dave Rogers specializes in complex civil litigation at both the trial and appellate levels. He has extensive experience in the area of construction litigation. Dave’s practice is focused on construction, real estate, and condominium matters.  He can be contacted at drogers@lawmtm.com


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