The families of those who occupied the Champlain Towers South condo building the night of June 24 are feeling the consequences of a collective failure to manage risk with an acuteness few of us ever experience. How this failure happened is still not clear, but it is coming into sharper focus every day.
A 2018 engineering report on the Champlain Towers South complex warned of “major structural damage” and “abundant” cracking and crumbling of support-bearing columns. The report also explained why extensive repairs were necessary. The board of the Champlain Towers South condo association commissioned the report to comply with a “40-year-old building” recertification requirement. Only two Florida counties, including Miami-Dade County where the complex is located, have these recertification requirements.
In 2008, the state briefly required structural integrity inspections every five years for condo buildings over three stories tall. The statute, however, was repealed two years later when some associations complained about the high costs of the inspections.
No Florida law requires association boards to repair structural problems when they are discovered. In Miami-Dade County, the 40-year-old building recertification provision requires structural or electrical problems identified in the process to be repaired within 150 days of when the process commences. Local officials did not enforce this requirement for the Champlain Towers South condo building.
No Florida state law requires condo associations to establish reserve funds for emergency repairs. Local officials can condemn unsafe buildings and order their evacuation, as happened with a North Miami Beach condo building when it was inspected after the Surfside collapse. But — at least until now — the identification and review of unsafe buildings in Florida has been haphazard at best and nonexistent at worst.
This spirit of hands-off regulation has left it to condo association boards to identify and manage risks and decide on whether and how to respond. The members of these boards are volunteer residents elected by fellow residents. Board members are not required to have financial, management, engineering or planning expertise — nor do requirements exist for training in any of these areas.
Essentially, the members of these boards — and the condo owners when voting on proposals submitted to them by their boards — are on their own to make decisions about the buildings they occupy. Local officials may condemn unsafe condo buildings, but this presumes an inspection has occurred and that the local officials know about it, which brings us back to square one.
The government enacts regulations to ensure the welfare and safety of its people. For example, states extensively regulate the insurance industry to protect consumers. Condo association boards are not insurers, but, like insurers, they manage risk for the mutual benefit of all whom they represent. They make decisions about how much to spend on landscaping, paint and pool furniture — but also inspections, maintenance, repairs and a host of factors relevant to the safety of the buildings. In Florida and many other states, the decisions of these boards are not subject to external review. In fact, they are essentially unregulated — which is appropriate for picking pool furniture but not for decisions like those which pertain to the structural integrity of high-rise buildings.
Sadly, many like it this way. Many condo owners do not want the government telling them how to manage their buildings any more than they would accept government regulation if they lived in a single-family residence, where government oversight is virtually nonexistent. Developers and investors oppose laws that slow down high-rise construction or complicate sales. And Florida legislators and local officials have not pushed for change, given the tax base that depends on the development of coastal property and what happens in coastal communities.
But having the freedom to operate beyond the reach of government regulation has a price. And sadly, it takes a tragedy such as Surfside to demonstrate that the price of a hands-off approach to regulating safety in high-rise residential housing is too high. The risks of living in an unsafe building are more consequential than the risks of an insurance policy becoming unreliable. Yet unlike insurance policies and the companies that sell them, Florida regulates the structural integrity of buildings with a very light touch.
Surfside is not just a failure of private risk management. It is also a failure of government regulation. The costs of not regulating are clear. Florida legislators — and voters — must recognize the importance of responsible regulation, especially of our state’s building infrastructure. It is time to dump the refrain “get the government off my back” and recognize the importance of responsible regulation to protect the safety and security of all Floridians.
Robert H. Jerry II is dean-emeritus at the University of Florida Levin College of Law and professor-emeritus at the University of Missouri School of Law. This column is based on the author’s essay in The Regulatory Review.