Flood vs. Wind Claims Following Hurricane Ian Webinar
January 25, 2023
The 2014 Florida Existing Building Code (the “Code”) contains what is conventionally called the “25 percent rule” (the “Rule”). The Rule applies to roof repair of any commercial or residential building. In a nutshell, the Rule states that if more than 25 percent of a roof or section of a roof is “repaired, replaced, or recovered” then the “entire roofing system” or “roof section” must be brought up to code. Obviously, the Rule is of extreme importance for Florida Irma property claims. Here is the text of the Rule:
708.1.1 Not more than 25 percent of the total roof area or roof section of any existing building or structure shall be repaired, replaced or recovered in any 12-month period unless the entire roofing system or roof section conforms to requirements of this code.
Many mistakenly believe the text of the Rule specifically refers to 25 percent of a roof being damaged. But the Rule does not refer to damage at all. Without more, the Rule would appear to be triggered if 30 percent need to be “replaced or recovered” for whatever reason, including the repair of, say, 23 percent of the roof. However, another chapter of the Code provides some guidance applicable to the Rule, appearing to exclude from the Rule “work on undamaged components:”
502.3 Related work. Work on nondamaged components that is necessary for the required repair of damaged components shall be considered part of the repair and shall not be subject to the provisions of Chapter 7, 8, 9, 10 or 11.
One must assume that “work on nondamaged components” would include replacement of “nondamaged components” as well. In other words, the replacement of a nondamaged roof area as part of a necessary repair of a damaged 20 percent likely is rendered irrelevant by 502.3, with no resulting trigger of the Rule. Frankly, the Code could be better worded, preferably within the text of the Rule itself. It seems clear enough, but this issue should be reviewed carefully on a case by case basis.
Also, the Rule references a “roof section.” If more than 25 percent of a “roof section” is affected, then only the roof section needs to be brought up to code. A roof section essentially is a part of the roof that is independent structurally or legally from the rest of the roof area. Here is the Code’s definition.
Section 202. ROOF SECTION. A separating or division of a roof area by existing expansion joints, parapet walls, flashing (excluding valley), a difference of elevation (excluding hips and ridges), roof type or legal description; not including the roof area required for a proper tie-off with an existing system.
Based on this definition, you can see several “roof sections” in the building below.
And don’t overlook the “12-month period” reference in the Rule. If 20 percent of the roof will be replaced, but, say, 6 months prior, 10 percent of the roof had been repaired, the Rule is triggered. It isn’t clear the point from which the 12 months is calculated, but presumably, it would be 12 months before the permit is pulled. We can see this as a point of contention with insured building owners. Can an insured wait a couple of months before pulling a permit and commencing repairs so as to not trigger the Rule due to a repair 11 months before? Regarding timing, it’s easy to imagine various scenarios that would create complicated coverage questions.
Remember, if the roof is already built to code, the Rule is moot.
For insurance adjusters, there are other factors to consider case by case. Are skylights part of the calculation of the “roof area” for purposes of calculating the percentage of roof affected? What if the damage to one roof “section” is so extensive that it amounts to more than 25 percent of the “roof area?” Strategic decisions must be made on these and other nuanced issues.
Butler can help.
For any further questions, please contact J. Pablo Cáceres.