Each week, I receive a multitude of calls and e-mails from condominium association clients, and non-clients alike, regarding the fire safety retrofit requirements. The confusion arises because of a 2010 amendment to section 718.112 of the Florida Statutes which, prior to 2010, provided an opportunity to condominium associations whose condominium building was greater than 75 feet in height, to opt-out of the requirement to retrofit the condominium with fire safety sprinklers. Effective July 1, 2010, this legislation was amended to remove the 75 feet in height requirement, meaning that, at least insofar as Florida law is concerned, a plain reading of the legislation means that all condominium associations must either be prepared to undergo a fire sprinkler system retrofit, or opt-out of this requirement.
On the other hand, the Florida Fire Protection Code has continually provided that the Life Safety Code requires high-rise buildings (meaning buildings 75 feet in height or higher) to either undergo a fire sprinkler system retrofit or implement an Engineered Life Safety System.
While many learned association counsel, with whom I have discussed this matter, and I agree that the requirement to install the fire safety system retrofit and the ability to opt-out was intended to apply to high–rise condominium buildings, the post 2010 legislation set out in chapter 718, Florida Statutes, more commonly referred to as the Condominium Act, requires all condominiums to be prepared to opt-out of the requirement to install the fire sprinkler system retrofit or initiate a permit application for the fire sprinkler system retrofit with local government showing that the retrofit will be complete by December 31, 2019. It is generally agreed that this was not the intended result.
Read the statute below and see what you think. Section 718.112(2)(l) of the Florida Statute provides, in relevant part, as follows:
Notwithstanding chapter 633 or of any other code, statute, ordinance, administrative rule, or regulation, or any interpretation of the foregoing, an association, residential condominium, or unit owner is not obligated to retrofit the common elements, association property, or units of a residential condominium with a fire sprinkler system in a building that has been certified for occupancy by the applicable governmental entity if the unit owners have voted to forego such retrofitting by the affirmative vote of a majority of all voting interests in the affected condominium. The local authority having jurisdiction may not require completion of retrofitting with a fire sprinkler system before January 1, 2020. By December 31, 2016, a residential condominium association that is not in compliance with the requirements for a fire sprinkler system and has not voted to forego retrofitting of such a system must initiate an application for a building permit for the required installation with the local government having jurisdiction demonstrating that the association will become compliant by December 31, 2019.
I have read articles on this subject whose authors take the position that condominiums below 75 feet in height need not be concerned with the requirement set out in section 718.112 (2)(l), above. Nevertheless, only judges have the ability to interpret Florida Statutes in this manner. Therefore, it is important for the board of directors of each condominium association to make their own decision as to whether they want to adhere to the requirements set out in Florida law. At a minimum, before a non-high-rise condominium (below 75 feet) decides that the relevant provisions of section 718.112, Florida Statutes, is not applicable to their condominium association, they should consult with both the association’s attorney and the local jurisdiction’s fire official. At the end of the day, there is no harm to the non-high-rise condominium choosing to take the opt-out vote. In the meantime, a committee of several attorneys is seeking clarification from the Division of Florida Condominium that the need to install the fire sprinklers or opt-out, etc., is applicable to only high-rise condominiums and not those below 75 feet.
IMPORTANT: Clearly, high-rise condominiums are affected by the requirement to retrofit or opt-out. But, here is what you may not realize and absolutely need to know: if your high-rise condominium votes to opt-out of the need to retrofit with a fire sprinkler system, then the Life Safety Code will require that condominium association to prepare an Engineered Life Safety System commonly referred to an “ELSS.” Therefore, before opting out of the need to retrofit the condominium with a fire sprinkler system, the association might consider comparing the costs.
Finally, some good news, according to the Life Safety Code, if your high-rise condominium building has exits from all of the units that lead directly to an outdoor corridor, then the condominium will not be required to install the fire sprinkler retrofit or an ELSS.