Hurricanes | Rembaum's Association Roundup

As I write this, Florida’s hurricane season is only a few days away. Not too long ago the Florida legislature amended Section 718.113(5)(d) of the Florida Statutes, and the change has significant financial implications for condominium associations and unit owners. This statute now directly addresses who must pay for the removal and reinstallation of hurricane protection such as shutters, impact windows, doors, and similar systems when that removal is necessary for the association to perform work on the common elements. This article addresses both who pays for the removal and reinstallation and who performs the work to do so.

The relevant statute provides that unless the declaration of condominium expressly provides otherwise, a unit owner is not responsible for the cost of removing or reinstalling hurricane protection when the association must temporarily remove it to complete maintenance, repair, or replacement of condominium property for which the association is responsible. This means that the default rule under the amended statute is that the association bears the cost of removal and reinstallation of hurricane protection. This could be a major shift for many communities, especially those with older declarations that never contemplated modern hurricane protection systems. Removal and reinstallation can be very expensive, particularly for impact-rated shutters and windows, and the cost can multiply quickly during large-scale projects such as concrete restoration, painting, balcony work, or window replacement.

The statute also provides a mechanism for determining who performs the work. If the declaration does not specify responsibility, the board must decide whether the association or the unit owner will physically remove and reinstall the protection. However, regardless of who performs the labor, the association must pay unless the declaration clearly shifts the obligation to the owner. If the association performs the work, it cannot charge the owner. If the owner performs the work, the association must reimburse the owner or apply a credit toward future assessments equal to the owner’s cost. This ensures that owners are not financially penalized for work required solely because the association is performing a common-element project.

A practical consideration arises when the hurricane protection is outdated or noncompliant with the current building code. In those cases, the association’s obligation is generally limited to reinstalling the protection only if it is code compliant. If it is not, the owner may be required to upgrade their hurricane shutters and other related protection at their own expense. This is an important nuance that associations should discuss with their legal counsel and engineers before beginning major projects. In addition, boards may wish to consider amending the declaration to clarify that should such systems need updating before reinstallation, then that, too, is an expense to be borne by the unit owner.

Many associations may prefer to shift the cost of removal and reinstallation to the unit owners or at least reserve the option to do so. But that shift must be set out clearly in the declaration of condominium itself. Board policies, rules, or resolutions, without an ammendment to the declaration, are not sufficient. If a community’s declaration does not contain language assigning responsibility for hurricane-protection removal and reinstallation to the unit owner, then the association will remain responsible under the statute. For many associations this could mean substantial unbudgeted expenses during upcoming repair cycles. Associations that wish to change this new statutory default rule should consult their attorney to prepare an amendment to the declaration. Such an amendment can clarify that owners are responsible for the cost of removing and reinstalling their own shutters or impact systems when necessary for association-related projects. Without such an amendment, the statutory default will continue to apply, and the association will bear the cost.

Remember too, Florida law requires both condominium associations governed by Chapter 718, Florida Statutes, and homeowners’ associations governed by Chapter 720, Florida Statutes, to adopt written hurricane protection specifications. These specifications must address the types of hurricane protection permitted, the color and style of such protection, installation standards, and any other structural or aesthetic requirements the association deems necessary. In both statutory schemes the purpose is the same: to create clear, enforceable standards that protect the property while maintaining architectural consistency.

If the effects of the Corvid-19 virus were not enough, June 1^st begins Florida’s unenviable hurricane season. Never has it been more important to board members and managers to understand the emergency powers approved by the legislature and codified into Florida Statutes in Chapters 718, 719 and 720 for use during a declared “state of emergency.” Many associations have already utilized these powers in their efforts to curb the Corvid-19 virus from spreading. If you are not yet familiar with these powers, well, you need to become learned before disaster strikes.

The statutorily required pre-requisite to utilizing the legislative emergency powers is that the Governor of the State of Florida has declared a “state of emergency”. Importantly, when exercising emergency powers, there should be a rational relationship between the action undertaken and the disaster itself. For example, an emergency special assessment needed to fix the condominium roof damaged by a hurricane, during a state of emergency makes good sense. However, just because there was a hurricane and a state of emergency declared, does not mean the emergency powers can be used to levy a special assessment to build a new gazebo, most especially when there was never a gazebo before.

The Covid-19 situation illustrates to many seasoned community association lawyers that the emergency powers granted by the legislature were drafted for use in response to, and for preparation for, natural disasters. More specifically, “in response to damage caused by an event for which a state of emergency is declared.” Suffice it to say, use of the emergency powers to help contain a virus epidemic was likely not contemplated. Nevertheless, circumstances warranted that the emergency powers be utilized during the Covid-19 crisis for which a state of emergency was indeed declared. Likely, as a result of the Covid-19 virus, the community association emergency powers granted by the Florida legislature will be tweaked by the legislature in its next session to provide for better applicability to an ever-evolving world where states of disaster are not limited to weather events alone.

The specific emergency powers legislation can be found in section 718.1265 Florida Statutes for condominium associations, section 720.316 Florida Statutes for homeowners’ associations and section 719.128 Florida Statutes for cooperative associations. While each are very similar, there are a few subtle differences that go beyond the scope of this article. Also, it should be noted that an association can amend its governing documents to prohibit a board member’s use of the statutory emergency powers. Perhaps, one justifiable reason to do so would be if the membership approves its own version of emergency powers which most obviously should be discussed with the association’s legal counsel before considering to do so.

A few of the emergency powers that are common to all of Florida’s community associations, unless otherwise provided, include:

Conduct board meetings and membership meetings with notice given as is practicable under the circumstances
Cancel and reschedule any association meeting.
Name as ‘assistant officers’ persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.
Relocate the association’s principal office or designate alternative principal offices.
Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.
Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.
Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.
Require the evacuation in the event of a mandatory evacuation order.
Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the property can be safely inhabited or occupied.
As to condominiums, mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.
As to condominiums, contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.
As to homeowners’ associations, mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the association property.
Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.
Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient.

These emergency powers are limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the owners and the owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

Please be sure to review the legislation that is specifically applicable to your type of association, be it a condominium, cooperative or homeowners’ association, as the above powers were presented for purposes of this article.

Prior to taking any action, consultation with the association’s attorney is an absolute must as this article is intended to provide useful information for consideration and not specific legal advice. Stay safe!

(Reprinted with permission from the May 2020 edition of the Florida Community Association Journal and as written by attorney Jeffrey Rembaum)

Category: Hurricanes

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