coronavirus | Rembaum's Association Roundup

December 10, 2020January 25, 2021

Association Rules After Expiration of the Governor’s State of Emergency Order for COVID-19

By the time you read this article, the governor’s declared state of emergency as related to the coronavirus may have reached an end. If not, well, hopefully it will soon enough due to significant diminution of the coronavirus. What then? What happens to the rules adopted by an association in an effort to combat the coronavirus? Can an association turn away guests of residents? Can the number of people allowed to use the amenities, such as the pool, be limited? Just how far can the board go in its efforts to create reasonable rules?

The emergency powers set out in §720.316 of the Homeowners’ Association Act, §718.1265 of the Condominium Act, and §719.128 of the Cooperative Act begin essentially the same. They each begin with the following phrase:

To the extent allowed by law and unless specifically prohibited by the declaration or other recorded document [or declaration of condominium, its articles or bylaws or cooperative documents, as the case may be], the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the association [or condominium or cooperative as the case may be] is located, may, but is not required to, exercise the following powers:…

In addition, they each end essentially the same, too, as follows:

The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

Therefore, the emergency power legislation contemplates use of the emergency powers in response to damage caused by an event for which a state of emergency has been declared by the governor and for a reasonable amount of time after the state of emergency is over, as necessary. But, as related to the coronavirus, can the emergency powers still be relied upon at the conclusion of the governor’s declared state of emergency? It is undisputable that the emergency power legislation was drafted in response to hurricanes, where actual damage to buildings and other property occurred, and not for the epidemic of an unexpected deadly virus. But, at least this ever-important legislation lent its applicability to the coronavirus situation and was relied upon by boards and lawyers alike to allow association board members to approve rules in an effort to contain the coronavirus. In response to the virus, some association boards restricted realtor showings and construction work, limited or even prevented guests, and the list goes on and on. Often these rules were adopted with limited notice to the members, sometimes outside of properly noticed meetings (which, depending on the situation may have been, was permitted at the time pursuant to the statutory emergency powers, which still require providing reasonable notice under the circumstances). The further in time we are from the end of the declared state of emergency, the less the emergency powers legislation can be relied upon…most especially because they were drafted with a different type of emergency in mind.

Therefore, in order to ensure your community’s, by now likely revised and lessened, coronavirus rules and regulations remain valid and enforceable, it is important to review the basics. Board members have a fiduciary duty to their association members. That duty supports board-promulgated rules that promote the health, happiness, and peace of mind of the majority of the members. Thus, rules can be adopted for different reasons. At times, a rule may be necessary under the circumstances. For example, say the local health department issues a special bulletin regarding a significant rise in coronavirus within a very limited geographic region in which an association has membership consisting of aged members. Likely, that association may reasonably adopt more stringent rules than an association located in an area with very few cases.

Clearly, if an association is going to restrict vendor and guest access or the rights of the members to use amenities that they otherwise have a lawful right to use, then the board better be able to create the necessary nexus between the situation at hand and rule at issue.

Rules Must Be Reasonable

In Hidden Harbour Estates v. Norman, 309 So. 2d 180 (Fla 4th DCA 1975), unit owners challenged a board-adopted rule prohibiting the use of alcoholic beverages in certain areas of the common elements of the condominium. The trial court found the rule invalid, holding that rules must have some reasonable relationship to the protection of life, property, or the general welfare of the residents of the condominium to be valid and enforceable. The Fourth District Court of Appeal, however, held that the rule was valid because the rule was reasonable. The Court explained that there is a principle “inherent to the condominium concept” that each unit owner must give up a certain degree of freedom in a condominium in order to promote the health, happiness, and peace of mind of the majority of unit owners. The Court concluded that the test for the validity of a rule is reasonableness. An association is not permitted to adopt arbitrary or capricious rules that do not relate to the health, happiness, and enjoyment of the unit owners. However, if a rule is reasonable, the association is permitted to adopt it.

Rule Validity

In Hidden Harbour Estates v. Basso, 393 So. 2d 637 (Fla 4th DCA 1981), the association sought to enjoin unit owners from maintaining a shallow well on their property. The Fourth District Court of Appeal noted that there are two categories of use restrictions: (i) use restrictions set out in the declaration of condominium and (ii) rules adopted by the board or the refusal of the board to allow a certain use when the board has the authority to grant or deny such use. The Court concluded that use restrictions set out in the declaration are “clothed with a very strong presumption of validity” because unit owners purchase their unit knowing of and accepting the restrictions to be imposed. However, rules adopted by the board do not enjoy the strong presumption of validity and must be “reasonably related to the promotion of the health, happiness, and peace of mind of the unit owners.” In this case, the board articulated three reasons for refusing to allow the unit owners to install a well on their property. However, the Court held that the there was no evidence to support the association’s articulated reasons for denial, and therefore the association failed to demonstrate a reasonable relationship between the denial of the application and the objectives which the association argued the denial would achieve. Because the board’s denial was not reasonable, it was held invalid.

Rules Cannot Contravene Declaration or Rights Inferable Therefrom

In Beachwood Villas Condominium v. Poor, 448 So. 2d 1143 (Fla 4th DCA 1984), unit owners challenged two rules adopted by the board of directors of the association which regulated unit rentals and the occupancy of units by guests during the owner’s absence. The trial court held that the rules were invalid because they exceeded the scope of the board’s authority. However, the Fourth District Court of Appeal reversed the trial court and held that the rules were within the scope of the board’s authority. The Court looked to the decision in Hidden Harbour v. Basso, and the two sources of use restrictions: those set out in the declaration of condominium and those adopted by the board. The Court noted that board-adopted rules are reviewed first by determining whether the board acted within the scope of its authority and second, whether the rule reflects reasoned or arbitrary and capricious decision-making.

The Court determined that a board-adopted rule that does not contravene either an express provision of the declaration or a right reasonably inferable therefrom will be found valid. In other words, if the board has the authority to adopt the rule, and the rule does not conflict with the declaration or any right reasonably inferable from the declaration, the board is acting within the scope of its authority to adopt the rule. In this case, the unit owners did not challenge the reasonableness of the rules, so the Court ended its analysis with the question of the board’s authority to adopt the rule and did not move on to the reasonableness considerations discussed in Hidden Harbor v. Basso. As the rules adopted by the board did not contravene either an express provision of the declaration or any right inferable therefrom, the Court held that the rules were within the scope of the board’s authority, and were, therefore, valid.

Remember, when the board publishes an agenda which provides rules will be considered for adoption, that if the rule governs a member’s use of their property or unit then it requires a 14-day notice to all members. The notice must also be posted conspicuously on the property 14 days in advance of the meeting. Rules affecting the common area and common elements only require the typical 48- hour board meeting notice. Of course, your community’s governing documents may also have requirements regarding rule adoption, and if so, they likely should be adhered to as well. After board adoption the rules need to be sent out to the entire community. In addition, homeowners’ association rules should be recorded in the county’s official records, too.

It is a given that as society progresses to normal, rules that were needed yesterday can become outdated today. Be sure to be in touch with your association’s lawyer regarding the continuation of any previously adopted coronavirus restrictions and any proposed new rules prior to board adoption to help ensure their continued enforceability.

(Reprinted with permission from the December 2020 edition of the Florida Community Association Journal)

August 8, 2020January 25, 2021

Governing Document Amendments In Light Of COVID-19

Making Lemonade Out Of Lemons

As a result of the unexpected COVID-19 crisis and its ramifications on Florida’s community associations, there are lessons that can be learned. Early on, an unexpected issue many community associations faced was whether the board could rely on the emergency powers set out in the Florida Statutes to help protect both residents and property alike during this time of uncertainty (the “emergency power legislation”). The Condominium, Cooperative, and Homeowners’ Association Acts each provide that the board of directors is granted certain emergency powers in response to damage caused by an event for which a state of emergency is declared by the Governor. While local governments at the city and county level may similarly declare a state of emergency, the emergency powers only spring into existence upon the Governor’s issuance of an executive order declaring a state of emergency in response damage caused by event.

These emergency powers include, just to name a few, the ability to cancel and reschedule meetings, conduct such meetings with as much notice as may be practicable, levy assessments, restrict access to the property and so much more. More specifically, Sections 718.1265 as to condominiums, 719.128 as to cooperatives, and 720.316 as to homeowners’ associations, Florida Statutes, each provide enumerated emergency powers available to the board of directors that may be exercised “in response to damage caused by an event for which a state of emergency is declared…”. However, in light of COVID-19 pandemic the interpretation of the phrase “in response to damage caused by an event” created questions and confusion to both laymen and lawyers alike.

At issue was whether the emergency power legislation only applies to situations where there is actual property damage and/or as a result of a hurricane damage. Even if not necessarily intended for COVID-19 type situations, to many lawyers, including this author, there was no question that the emergency powers could be utilized by board members of Florida’s community associations in response to the instant pandemic. Nevertheless, others questioned whether the emergency power legislation should apply since it was initially drafted in response to hurricane type events, and not a medical event such as the COVID-19 pandemic.

By way of background, the emergency power legislation was drafted in response to the series of hurricanes that hit Florida in 2004, however, it took the Florida Legislature approximately four years to pass them into law. A plain reading of the emergency power legislation even demonstrates that these statutes were drafted with hurricane type damage in mind, and not other disasters, such as global pandemics. But, that does not mean they cannot be applied to other situations. In fact, on March 27, 2020, the Florida Department of Business and Professional Regulation Division of Condominiums, Timeshares and Mobile Homes (the “Division”) issued an unexpected order that provided that the phrase “response to damage caused by an event” should not be considered when reading the emergency powers legislation. Then on May 20, 2020, the Division entered a second order explaining that its prior order would expire on June 1, 2020 which is slightly more than a month before the Governor’s state of emergency is set to expire on July 7, 2020. Without regard to whether the Division had the necessary authority to issue such orders in the first place, the result of its second order has attorneys asking, once again, does the emergency power legislation apply? While a great many lawyers experienced in the body of community association law believe so, that does not mean that a court would agree upon legal challenge. Candidly, it would be surprising if the court did not agree, but one never knows with certainty how a court will ultimately rule, most especially on issues of first impression, for which this certainly qualifies.

There is already legislative chatter about the need to revise the emergency power legislation to make it more adaptable to the different types of disasters that can occur. But, community association boards should be able to rely, right now, on the emergency powers in any situation where the Governor has declared a state of emergency where health of the members can be at issue. Even if the Florida legislature does amend the emergency powers to make it patently clear that the board may exercise its statutory emergency powers during a declared state of emergency for a pandemic, such an amendment will take time and that could mean anything but a fast fix. So, what is an association to do to prepare for the next unanticipated state of emergency?

Well, at least in this instance it is quite likely that your association can act much more quickly to amend the community’s declaration or bylaws, than the Florida legislature can to amend the Florida Statutes. With that in mind, the board can sponsor and the association membership can adopt an amendment to the declaration or bylaws that clarifies that the emergency powers set out in the Florida Statutes (with specific reference) apply to all states of emergency declared by the Governor to the extent the safety and welfare of the members and/or the property is at issue. In addition, or as an alternative, specific emergency powers can be drafted in the declaration or bylaws, too.

A few suggestions for consideration include:

During any emergency the Board may hold meetings with notice given only to those Directors with whom it is practicable to communicate, and the notice may be given in any practicable manner. The Director, or Directors, in attendance at such a meeting shall constitute a quorum.
The Board may cancel, reschedule and/or postpone Board and member meetings, including the annual meeting, if necessary to protect the health and welfare of the members.
Corporate action taken in good faith during an emergency under this section to further the ordinary affairs of the association shall bind the Association; and shall have the rebuttable presumption of being reasonable and necessary.
The Board may use reserve funds to meet Association needs and may use reserve funds as collateral for Association loans. The Board may adopt emergency assessments with such notice deemed practicable by the Board.
The Board may adopt emergency Rules and Regulations governing the use and occupancy of the Units, Common Elements, Limited Common Elements, and Association Property, with notice given only to those Directors with whom it is practicable to communicate.
Any Officer, Director, or employee of the Association acting with a reasonable belief that his actions are lawful in accordance with these emergency Bylaws shall incur no liability for doing so, except in the case of willful misconduct.
The Board shall act to keep all members informed of all Board actions taken pursuant to these emergency powers by U.S. Mail, closed circuit tv, social media, or email, etc. as may be practicable under the circumstances.

If your association is interested in adopting such an amendment to your association’s governing documents, please be certain to seek out competent legal counsel that has the requisite expertise in the area of community association law.

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

June 26, 2020January 25, 2021

Facial Covering Requirements County by County & A Hand Sanitizer Recall

Below you will find face covering requirements for Palm Beach, Broward, Miami-Dade, Hillsborough, Pinellas, Pasco and Manatee Counties. In addition, the cities of Hallandale and Aventura are discussed.

Where appropriate, face covering requirements for those living in condominiums and homeowners’ associations are discussed as well.

A recall was issued for a certain manufacture of hand sanitizer products which is presented immediately below the face covering information.

PALM BEACH COUNTY

Palm Beach County Order No. 2020-012 provides that effective June 25, 2020, facial coverings are required to be worn in public. Specifically, facial coverings are required to be worn in:

i) Businesses and establishments of any type, including, without limitation, restaurants, retail stores, grocery stores, gyms, indoor recreational facilities and vehicles for hire,

ii) Public places, including outdoor areas that are open and regularly accessible, and outdoor common areas within private communities, where social distancing is not possible or not being practiced,

iii) Palm Tran transit services, and

iv) County and municipal governmental facilities.

Facial coverings are defined under the Palm Beach County Order as any covering which snugly covers the nose and mouth, whether store bought or homemade, mask or clothing covering, including, but not limited to, a scarf, bandana, handkerchief, or other similar cloth covering and which is secured in place. The Order is clear that facial coverings are required to be worn in outdoor common areas within private communities accessible to more than one housing unit where social distancing cannot be accomplished or is not being practiced.

One must also wear a facial covering while working in or visiting businesses and establishments, including indoor recreational facilities.

Businesses and establishments are further required to ensure compliance with the Order and establish a process for verification of compliance upon customer entry into the establishment, and to conspicuously post a specific sign in three languages (CLICK HERE TO LINK-http://discover.pbcgov.org/pdf/covid19/Retail-Mask-Poster.pdf) indicating that persons must wear facial coverings and maintain social distancing.

The Order does not specifically identify indoor common elements or common areas of condominium and homeowners’ associations as businesses or establishments where facial coverings must be worn. However, due to the fact that any type of business or establishment must comply and indoor recreational facilities are specifically listed as establishments in the Order, we believe that the Order likely applies to indoor common element and common area facilities. Therefore, we recommend that you treat your indoor facilities as establishments under the Order until further orders or guidance is provided by the County. This means that associations should monitor and require compliance with facial covering requirements, particularly in indoor recreational facilities, and conspicuously post the designated sign required by the Order.

There are exceptions to the facial covering requirements for certain individuals and in certain situations where they are not feasible, including, but not limited to, by children under two (2), by persons who have medical conditions such as asthma or COPD, and while consuming food or beverages. However, the exceptions are limited and should be implemented in accordance with the Order so as not to cause the spread of the virus. Finally, compliance is serious as the county has now indicated that fines and penalties may be issued for businesses that do not comply. Whether this includes associations is to be determined.

BROWARD COUNTY

Generally, facial coverings must be worn anytime you obtain a good or service from any establishment, including entering, exiting, and otherwise moving around within the establishment (and must be worn by persons working in those establishments during in-person interactions).

The covering should cover the nose and mouth, and comply with the CDC recommendations on the use and sanitation of such coverings. There are certain limited exemptions, including, without limitation, children under the age of two or children of any age while in the custody of licensed childcare facilities, persons with medical conditions, or during the time-period when you are receiving a good/service that precludes wearing a facial covering (e.g., eating, drinking, receiving a facial grooming).

Violations are subject to potential civil penalties (fines) and/or criminal enforcement (2nd degree misdemeanor). Suspected violations can be reported to local municipal code enforcement. The Broward County Order does not specifically require facial coverings within private residential communities (condos/HOAs). Please note, however, that cities may have stricter requirements than the county, so you should confirm with your city accordingly.

Any questions concerning the county requirements can be directed to the County COVID19 Hotline: ‪(954) 357-9500.

The relevant FAQ from the county, and the three (3) Orders are below:

FAQ about Facial Coverings from County: https://www.broward.org/CoronaVirus/Documents/FacialCoveringsFAQs.pdf
EO #12: https://www.broward.org/CoronaVirus/Documents/EmergencyOrder20-12.pdf
EO #13: https://www.broward.org/CoronaVirus/Documents/EmergencyOrder20-13.pdf
EO #14: https://www.broward.org/CoronaVirus/Documents/EmergencyOrder20-14.pdf

CITY OF HALLANDALE

Facial coverings are required within the common areas of all buildings with multiple residents per Emergency Order HB20-12.

CITY OF HOLLYWOOD

All persons beyond legal boundary of residential property are required to wear facial coverings consistent with CDC guidelines as per Emergency Order 2020-06.

MIAMI-DADE COUNTY

Miami-Dade County issued Emergency Order 20-20 on April 9, 2020 (“Order 20-20”) which requires that all persons working in or visiting grocery stores, restaurants, pharmacies, construction sites, public transit vehicles, vehicles for hire, and locations where social distancing measures are not possible to wear facial coverings. In other words, face masks are required where social distancing is not possible. The Order defines a facial covering as “any covering which snugly covers the face and mouth, whether store bought or homemade, and which is secured with ties or ear loops.”

On May 15, 2020, Miami-Dade County issued Emergency Order 23-20 (“Order 23-20”) further providing that anyone “working in or visiting an establishment, including but not limited to airports, seaports, and mass transit facilities and vehicles” must wear a facial covering as described in Order 20-20. However, Order 23-20 provides an exemption for children under the age of two years, persons who have trouble breathing, where federal or state safety regulations prohibit the wearing of facial coverings, and for persons engaged in strenuous physical activity.

On May 27, 2020, Order 23-20 was amended to provide an additional exemption to the facial covering requirement “while persons are eating or drinking.” Additionally, Order 23-20 adopts The New Normal; A Guide for Residents and Commercial Establishments (the “New Normal Guidelines”) which includes industry specific protocols for the reopening of retail and commercial establishments, including general reopening guidelines that provide that facial coverings must be worn inside businesses and commercial establishments or wherever social distancing is not possible.

On June 22, 2020, Mayor Carlos A. Gimenez released a statement regarding the importance of wearing masks and social distancing. He reiterated that masks are required indoors at business establishments and outdoors when people cannot practice social distancing to remain at least six (6) feet apart. In his statement, Mayor Gimenez acknowledged the stricter rules issued by some municipalities in Miami-Dade County, including Miami, North Miami Beach, Aventura, Hialeah, and Miami Gardens.

CITY OF AVENTURA

As pertains to community associations, the City Manager of Aventura issued Emergency Order Number 12 (“Order 12”) which provides additional mandates requiring the use of facial coverings in the interior “Common Areas” of commercial buildings and residential condominium and cooperative buildings. Order 12 provides that common areas include lobby/reception areas, hallways, elevators, mailrooms, clubhouse/meeting rooms, and stair wells. That means that you are required to wear a mask in any interior common areas of condominium or cooperative buildings in the City of Aventura. It is important to note that Order 12 provides that property managers/building managers are required to enforce the facial covering requirement.

HILLSBOROUGH COUNTY

Order 2020-27 went into effect on 5pm June 24, 2020. The order does not specifically apply to community associations as they are not a “business” under the order. Face coverings must be worn inside all indoor establishments. Businesses are required to enforce the mask order and can be charged with a second-degree misdemeanor if they don’t, a penalty of up to 60-days in jail and/or six months’ probation and a $500 fine. The exception does not apply to children under two, persons with pre-existing medical conditions that would be worsened by a mask, hearing-impaired persons, those working in a profession that would be unable to perform their duties with a mask such as public safety, exercising, eating and drinking, or those already observing federal social distancing guidelines (the 6-foot rule).

Tampa is the only exception in Hillsborough where the mask rule would apply to community associations. if you are outside your home, you must wear a face covering and if no face covering, up to a $500 citation could be issued. This would apply to community associations whenever a resident is outside of their residence.

PINELLAS COUNTY

Order 20-14 went into effect on 5pm June 24, 2020. Face coverings must be worn in all indoor public places in Pinellas County. While not specifically drafted to apply to community associations, the definition of indoor public place would cover community associations when the residents can access the facility. The only exceptions applicable to community associations are if less than 10 people are in the facility and they are practicing social distancing. Parties not wearing a mask can receive a civil citation of $100 for a first offense, $250 for a second and $500 for a third. Additional repeat violations may result in a misdemeanor arrest. The exceptions mirror those of Hillsborough County and Pinellas’s enforcement cannot conflict with the Americans with Disabilities Act. The Order does not apply to government entities or hospitals or persons under the age of 18.

PASCO COUNTY

Order went into effect ‪5pm on June 25, 2020. Face coverings must be worn inside all businesses, government offices, and schools. The definition of businesses is nebulous enough to ensnare community associations under the “providing services to the public” standard. If someone does not wear a mask in the aforementioned places, they will not be able to enter the business, or will be removed once inside. Individual business owners are required to enforce the ordinance or may face a fine up to $250. The exceptions mirrors Hillsborough County and Pasco’s enforcement cannot conflict with the Americans with Disabilities Act. It is suggested you speak with your community association’s attorney due to the lack of specificity in Pasco County’s Order to determine if the Order may apply to your community association.

MANATEE COUNTY

No mask requirements.

HAND SANITIZER RECALL

The Food and Drug Administration issued a warning on nine alcohol-based hand sanitizers manufactured by Eskbiochem SA de CV in Mexico because it contains wood methanol, a toxic substance. It can result in death if ingested or if absorbed through the skin.

“Consumers who have been exposed to hand sanitizer containing methanol should seek immediate treatment, which is critical for potential reversal of toxic effects of methanol poisoning,” the FDA wrote on June 19.”

Following is list of the hand sanitizers manufactured by Eskbiochem:

All-Clean Hand Sanitizer (NDC: 74589-002-01)
Esk Biochem Hand Sanitizer (NDC: 74589-007-01)
CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-008-04)
The Good Gel Antibacterial Gel Hand Sanitizer (NDC: 74589-010-10)
CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-005-03)
CleanCare NoGerm Advanced Hand Sanitizer 75% Alcohol (NDC: 74589-009-01)
CleanCare NoGerm Advanced Hand Sanitizer 80% Alcohol (NDC: 74589-003-01)
Saniderm Advanced Hand Sanitizer (NDC: 74589-001-01)

June 2, 2020January 25, 2021

Stay Ahead of the Curve: Lessons in Technology Learned from Covid-19

The statutory emergency powers granted to community associations as a result of the Covid-19 State of Emergency proved to be a valuable resource for the orderly operations of Florida’s community associations. Many associations had to make significant changes to how they conducted the business of their association. For example, holding board meetings via “Zoom” and “GotoWebinar” became invaluable. But, when the State of Emergency is over can annual meetings and board meetings continue to take place on the internet? Sure they can, subject to the important considerations explained below. In addition, what other technologies can be utilized by the board?

In fact, at the present time there are three statutory grants of technology that an association can utilize to make conducting the business of the association easier on a regular basis. They include, holding meetings electronically, voting electronically, and using email as an official means of communication to the members rather than the U.S. Postal Service. Electronic board meetings allow the board to continue conducting the business of the association without putting themselves or others in harm’s way. But even more than that, by attending electronically think of all of the gas that is saved since no one has to drive to the meeting. More than that, think of the extra time spent not driving or walking to the meeting and how it could be used as family quality time or just to relax.

However, if the board chooses to use video conferencing, it is important to remember that the board must comply with the statutory provisions regarding board meetings. The members must receive notice of the meeting pursuant to the bylaws of the association, and in any event, at least 48 hours in advance of the meeting. Additionally, condominium association members must have the right to speak to all designated agenda items and HOA members also get the additional right to speak on any item discussed by the board (this is because from a strict statutory interpretation condominium association boards are only supposed to address what is set out on the agenda, while such restriction does not apply to HOA boards). Remember, there is no exception to the meeting notice requirements and the need to provide opportunity for member comment. Therefore, any video conferencing software the board utilizes must allow members to virtually attend the meeting and have the opportunity to speak.

The second technology that associations can utilize to make life easier is electronic voting. Florida law allows condominiums, homeowners associations, and cooperatives to conduct elections and other owner votes electronically. When an association board adopts electronic voting, each member of the association must opt in, in writing, and can then vote safely from the comfort of their own home. Imagine all of the time saved by punching a computer button to get the tally, rather than counting by hand, in some instances over 1,000 votes!

To adopt electronic voting, the Board must first adopt a resolution authorizing an online voting system. The board resolution must provide that members will receive notice of the opportunity to vote online and must establish reasonable procedures and deadlines for members to consent, in writing, to online voting, and procedures for members to opt out of online voting. Once the board has approved electronic voting, the board must select an online voting system that complies with the requirements of Florida law. The online voting system must be able to do the following: (1) authenticate the owner’s identity, (2) authenticate the validity of each electronic vote to ensure that the vote is not changed during transmission, (3) transmit a receipt to each owner who casts an electronic vote, (4) be able to separate any authentication or identifying information from the ballot when voting must be done by secret ballot, and (5) be able to store and keep electronic votes accessible for recount, inspection, and review purposes.

Please take note that the board cannot force owners to vote electronically. Thus, a necessary step is to obtain each member’s written consent to participate in electronic voting. If an owner does not consent or opts out of electronic voting, then the board must allow that owner to paper vote.

The third technology an association can utilize which saves money, paper and time, is using electronic notices for official association communications. In other words, give up postage stamps in favor of using e-mail. Generally, associations are required to send official notices via mail or hand delivery. However, the association may choose to send notice via e-mail but only if an owner has provided their written consent to receive their notices electronically.

E-mails used for official association communications can only be sent to those owners who consent, in writing, to receive their official notices by electronic transmission. The written consent must specifically authorize the association to transmit notice electronically. An owner who has consented to electronic notice may opt out at any time. The association must retain a roster of the e-mail addresses and the written consents of owners as an official record of the association. The member is responsible to ensure the association’s emails are not blocked or categorized as spam. Failure to receive an email due to a member’s inability to receive the email will not be a valid reason for objecting. Budget adoption notices, annual meeting notices, election notices, board meeting notices and so much more can be provided via email.

Over the last several months, many associations have had to learn how to utilize technology to conduct the business of their association during the Covid-19 pandemic. Some have done so correctly and likely others have not. Thus, in utilizing any of the technology discussed in this article, an important step is to consult with your association’s attorney to ensure proper compliance with all the statutory requirements. Let us also turn a negative into a positive by continuing to use technology to assist the association with smooth operation. Who knows, perhaps one day, there will be a way for members to virtually enjoy the amenities, too. Until then, you’ll find me at the pool deck.

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

May 8, 2020January 25, 2021

From One Disaster to the Next: Hurricane Season Starts June 1

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)

April 13, 2020

The 2020 Census: The Importance of Being Counted, Especially Now

The U.S. Constitution provides that every ten years, the United States must conduct a census to count the entire population of the nation. Moreover, federal law requires each person to complete the census. Each year, the federal government distributes more than $675 billion to states and communities based on Census Bureau data. Additionally, information gathered in the census is used to determine how many Representatives each state has in Congress and is used to redraw the congressional district boundaries. Local communities rely on census data to plan for new roads, schools, and emergency services. In the private sector, businesses use the census data to decide where to build factories, offices, and stores which create jobs in the community. In order for your community to receive the maximum benefit from the 2020 Census, every member must be counted.

The United States Census Bureau has made the process of responding to the 2020 census easier than ever. Beginning in Mid-March each household will receive an invitation to respond to the census with options for how to respond. You may respond online where the questionnaire will be available in English and 12 additional languages. You can also respond by phone in English or 12 additional languages. If you would prefer to respond to the questionnaire on paper, the Census Bureau will be mailing paper questionnaires to every household that has yet to respond by mid-April. Finally, those who prefer to respond in person will be able to do so in mid-May as census takers will being visiting all household that have not yet responded. Census workers will make six attempts to find residents who do not return forms. So, if you want to avoid finding a Census Bureau field representative on your doorstep, complete the questionnaire online or over the phone when you receive it in mid-March.

Similar to process servers, associations must admit census workers performing official business for the 2020 Census. In accordance with Section 223 of Title 13 of the U.S. Code provides that anyone who willfully neglects give free ingress and egress to a duly accredited representative of the Census Bureau may be subject to a fine of up to $500.00. The Census Bureau has also provided information to help you verify that an individual visiting your association and/or home, as the case may be, is actually a Census Bureau employee. You and your association’s security gate personnel will be able to verify a Census Bureau field representative using the following information:

A Census Bureau field representative will always present an ID badge that includes their name, their photograph, a Department of Commerce watermark, and an expiration date.
A Census Bureau field representative will be carrying an official bag with the Census Bureau logo or a laptop, and will provide a letter from the Census Bureau on official letterhead stating why they are visiting your residence or community.
If you or your association’s security staff desire to independently verify a field representative’s status, you can enter the person’s name in the Census Bureau’s staff search website at www.census.gov/cgi-bin/main/email.cgi or contact the regional office for Florida by calling (470) 889-6800.

Understandably, you may be concerned over the confidentiality of your census responses, but the law is clear: no personal information can be shared. All the information you share is protected by law and cannot be used against you. The Census Bureau is prohibited from releasing any identifiable information about individuals, households, or businesses, even to law enforcement agencies. The Census Bureau and its employees are prohibited from releasing information that identifies you personally. Each employee and contractor is sworn to protect your information, and a violation of that oath can result in a fine up to $250,000 and/or up to five years in prison. The Census Bureau takes strong precautions to protect online responses as well. All data is encrypted to protect personal privacy and once the Census Bureau receives the data it is taken offline.

Not only does, federal law requires you to complete the census, but Section 221 of Title 13 of the U.S. Code even provides that a $100 fine will be imposed on anyone over the age of eighteen who refuses or willfully neglects to complete the census. So, what are you waiting for? Go and complete your 2020 Census- the information gathered in the 2020 Census will be of vital importance to your association, your surrounding neighborhoods, the city, county and state.

COVID-19 UPDATE:

The health and safety of your Community and all residents is very important to us. We also realize that our clients have uncertainty and concerns around the continuing operation of your Community, and our team of attorneys will remain available to all of you during these times.

In addition, we added a very useful and informative section to our website. Visit it by clicking HERE.

March 29, 2020April 13, 2020

COVID-19 UPDATE: Your Questions Answered & Emergency Powers Confirmed

OUR KBR TEAM OF ATTORNEYS OFFER GUIDANCE TO YOUR MOST PRESSING COVID-19 QUESTIONS

1. If we have a resident who tested positive for Covid-19 should we inform the entire community?

If the positive test has been confirmed, while it is ok to alert the entire community that a member has tested positive for Covid-19, it is definitely NOT ok to identify the infected person by name and/or property address. It is recommended that you contact Association counsel for assistance in preparing or reviewing the notice to the membership.

2. What do we do if a confirmed, infected person in our community refuses to self-quarantine?

Consider contacting the County Health Department, the local Police Department, Department of Homeland Security, and Center for Disease Control to report them. Please be reminded that you have no independent authority to force anyone to self-quarantine.

3. Should we close the association clubhouse and gym during the quarantine period?

With known infections escalating at a breakneck pace, community leaders must make tough business decisions to protect the health, safety and welfare of community residents, staff and to promote compliance with local, state and federal emergency orders and declarations. We recommend implementing strategies to minimize spreading the disease and taking actions designed to maintain a safe environment. Prohibiting use of indoor common facilities and amenities generally falls within the discretion of the board of directors, particularly in light of the emergency powers granted to all Boards of Directors, during this pandemic, by Florida Statutes, and is strongly recommended by the state health department.

Consequently, we recommend restricting access to these facilities as the most effective way to prevent residents from becoming infected after touching surfaces, railings, entry doors, furniture or other items. This is especially important if residents typically congregate in the clubhouse in close proximity to each other.

Board members are obligated to act with good faith, with the care of a reasonable person and in the best interests of the community. It is certainly in the best interest of the community to maintain a clean and safe environment. It is likewise in the best interests of the community for the association to promote social distancing in compliance with recommendations of governmental agencies.

4. Should we close the association swimming pool during the quarantine period?

As far as we know, there is no evidence that the infection spreads from one person to another in water, however boards must take the same considerations stated above into account,. Some associations are permitting owners to use the pool after the association removes the pool furniture, so long as each person agrees to remain 6 feet from one another and limit the number of users to less than 10. This continued use would still require the association to engage in extraordinary cleaning/sanitizing measures for any high-touch areas including railings, access-ways, bath facilities and the like. The logistics, costs and possible liability concerns often lead directors to the conclusion that shutting the pool facilities is a far better alternative, which is legally supportable and suggested.

5. Should we forgive all assessment payments for 60 days? Should we reduce our budget by 20%?

Certainly these are unprecedented times. Many communities will be faced with critical decisions regarding the likely financial impact the Covid-19 virus will have on the owners and overall operations of the association.

However, as board members have a fiduciary duty to ensure that the association meets its many financial obligations, we do not recommend adopting a blanket policy to forgive all assessments for all owners for a certain period of days (30, 60, or 90 days), nor do we recommend an immediate reduction in the budget.

The primary reason is that the association must still function in an effective manner, which includes ensuring that its vendors and obligations are timely paid and met, including, without limitation, insurance, maintenance/sanitation of the common elements and facilities, security, and communication services (telephone, internet, cable). Some communities may have loan repayment obligations as well. Adopting a blanket policy to forgive all assessments can invariably cause some owners, who otherwise had no intention of withholding payment or paying late, to take advantage of the “amnesty” period, which will only create a negative impact on the association by interrupting the necessary cash flow for community services.

Of course, it is also important to demonstrate compassion during this period and Boards do have the authority to consider hardship requests from an owner on a case-by-case basis, which can include: agreeing to extend the period of time for an owner to make payment; waive late fees; enter into payment plan; or, to send additional late notices before turning a delinquent account over to legal counsel for collection. The types of hardships to be considered by the Board can include, without limitation, a documented reduction in household income by the owner or an increase in household expenses, as well as documented medical reasons. Also, if there are items in the budget that are discretionary and vendors for these non-essential services are willing to work with the Board to either temporarily suspend those services or defer payment, the board can exercise its reasonable business judgement to work with such vendors on those points. It is recommended that you review any proposed policies with your association counsel before implementing them.

6. Should our association restrict guests or contractors during the quarantine period?

Among the statutory emergency powers of a condominium board is the right to determine any portion of the “condominium 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 based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board. Condominium property is defined by the Florida Condominium Act (Chapter 718 of Florida Statutes) to include both common elements and units.

However, the statutory emergency powers for homeowners’ associations are a little different. They provide that the board may determine any portion of the “association property” unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board. The term “association property” is not defined by the Florida Homeowners Association Act (Chapter 720 of Florida Statutes), but would seem to refer to property owned by an association, including only the common area and not lots or homes.

Whether an association may, should or must restrict or prohibit guests or contractors from entering the community due to COVID-19 depends upon the nature of the community, applicable law and, of course, the orders or directives from federal, state, county and local authorities.

In many condominiums there are shared elevators, lobbies, entry doors, hallways, stairways and the like. Since residents are in close proximity to each other, and guests and contractors will typically need to share access points with residents, it is likely reasonable to limit guests and contractors in condominiums with such shared areas. However, exceptions for guests and contractors who are necessary for the resident must be considered. A condominium association must surely allow a resident to have a guest who is necessary for a disability. In addition, residents may also need guests for other essential purposes and they should not be precluded from accessing units. Of course, these issues need to be evaluated on a case-by-case basis.

In a condominium setting, it appears reasonable for the board to similarly restrict access and work by contractors, other than those who are performing necessary work, to be determined by the board. It is not advisable to restrict contractors who are needed to ensure that a unit is fully functional and habitable. Optional renovations, which are generally unnecessary to maintain or repair the unit, may be restricted. It is interesting to note that many of the emergency orders issued by local governments, such as Broward and Palm Beach Counties, provide that contractors are essential workers who may work despite the orders.

As noted above, the authority of the board of a homeowners’ association to prohibit entry or occupancy appears to apply to common areas rather than the lots and homes. Furthermore, unlike a condominium, even where the homes are attached (such as townhomes), they typically do not have very much shared areas. Presumably a guest or contractor of a resident is able to go directly to the resident’s home without contacting or affecting areas used by other residents. As such, the board of a homeowners’ association may not have as much legal support for a restriction on guests or contractors of residents.

7. Should our association prevent tenants and owners from moving in during the quarantine period?

Unless there is a future State or local order that further limits or restricts activity in community associations, it does not appear that a restriction preventing owners from moving into a condominium or homeowners’ association community would be reasonable. The fact is that owners have more rights than tenants, and obstructing an owner from entering their property is likely not warranted unless, for example, the property was destroyed by a hurricane or is otherwise unsafe. However, it must be recognized that additional use of the shared areas of community associations could lead to the spread of COVID-19.

As a result, certain restrictions on new leases, particularly new short-term leases which have not been approved, may be reasonable to prevent a “revolving door” situation when there is an influx of too many people in the shared areas of the community. This may also include screening tenants concerning whether they have recently been exposed to COVID-19 and using it as a basis to deny immediate occupancy. As noted above, there is typically less shared area in homeowners’ association communities and, therefore, a homeowners’ association may have less reason to preclude new tenants. In any event, all applications for the proposed transfer or lease of a unit or lot should be timely reviewed in accordance with the governing documents for the community to ensure that the association complies with any applicable time frames during which approval must be furnished to the owner or applicant.

Also, On March 27, Governor DeSantis signed an Order prohibiting vacation rentals less than 30-days. The Order expires 14 days later unless extended.

We strongly encourage Boards to discuss these issues with your association’s legal counsel to ensure legal and appropriate measures are being undertaken to deal with this rapidly ever evolving and fluid situation.

Confirmation of Emergency Powers

Please see the Order from the Secretary of the D.B.P.R. confirming the application of the Emergency Powers for all Boards, as well as the tolling of the deadline for financial reporting requirements for Condominium, Cooperative and Timeshare Associations, during the current State of Emergency.

Short Term Rental Prohibition Order

On March 27, Governor DeSantis signed an Order prohibiting vacation rentals less than 30-days. The Order expires 14 days later unless extended.

We added a very useful COVID-19 resource section to our website. You can visit it by clicking HERE:

The Kaye Bender Rembaum Team Remains Available to You and to Your Community Association

March 16, 2020March 23, 2020

SPECIAL CORONAVIRUS EMERGENCY POWERS EDITION: BOARD EMERGENCY POWERS

FOR CONDOMINIUM, COOPERATIVE & HOMEOWNERS’ ASSOCIATIONS

All board members and managers should take a few moments and brush up on emergency powers approved by the legislature and codified into Florida Statutes in Chapters 718, 719 and 720 for use during a “state of emergency.” Hopefully, your association will not need to use them. But just in case, now is the time to familiarize yourself with this important legislation.

No doubt the emergency powers granted by the Florida legislature to a condominium, cooperative and homeowners’ association board of directors for use during a “state of emergency” were intended for hurricanes and the like. Nevertheless, should circumstances warrant, they can be utilized during this state of emergency caused by the Coronavirus. However, use of these powers should be reasonably related to the threat at hand. In other words, there should be good reason for their exercise such that there is a nexus between the emergency action taken and the situation at your association as related to the Coronavirus.

Due to the Coronavirus, a myriad of other issues present themselves for consideration, too. Should board meetings be held and if so, how? Should the board learn of an infected member living in the association, what next? Should the infected person be identified to other members? What type of notice should be provided? Should an entire condominium be quarantined due to one case of coronavirus or should only those members who were in contact with the infected member be in quarantine? These are issues of first impression and the list goes on…

During this time, if there is no reason to have a board meeting because there is no business to be voted on, then consider cancelling the meeting. If a board meeting is needed, consider doing so by conference call. Remember, all members still have the right to listen and, at the right time, speak. If this is not possible, be sure to draft into the minutes the reason why, because there is no emergency power that allows excluding the members attendance and participation at a board meeting.

Based on what we have all seen and read, the infected person will be quarantined along with all other persons the infected person identifies as having been in contact with them. Therefore, one way or the other word of the situation is likely to get out. Nevertheless, notice to the entire community should be considered, but identification of the infected person should be avoided.

Meetings with a large numbers of attendees should be avoided, but if meetings with a large number of participants become necessary, then consider spacing out the seats to avoid unnecessary close contact.

Plan ahead by stocking up on several weeks of supplies needed for the smooth operation of the association.

Consider temporary closing of the clubhouse and other areas of possible congregating. Obviously, Bingo and similar games should be avoided. Shows should be cancelled and re-scheduled, if possible, etc.

The Board should focus on the protection of its members though minimization of health and economic risks. Regardless of what steps are taken, given the circumstances, there are possible legal consequences. Therefore, bear in mind prior to taking any action, consultation with the association’s attorney is an absolute must as this column is intended to provide information for consideration and not specific legal advice.

Thank you to so many friends and peers who provided their comments to this writer, which led to this article during this most difficult of situations taking place in uncharted territory.

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THE SPECIFIC LEGISLATION

Following is the legislation that provides the specific emergency powers for Florida’s community associations. First presented is emergency powers for condominium associations, followed by emergency powers for cooperative associations and emergency powers for homeowners’ associations.

EMERGENCY POWERS: CONDOMINIUM ASSOCIATIONS

718.1265 Association emergency powers.—

(1) To the extent allowed by law and unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may, but is not required to, exercise the following powers:

(a) Conduct board meetings and membership meetings with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this paragraph.

(b) Cancel and reschedule any association meeting.

(c) 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.

(d) Relocate the association’s principal office or designate alternative principal offices.

(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.

(f) 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.

(g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium 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.

(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.

(i) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration

(j) 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.

(k) 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.

(l) 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.

(m) 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. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.

(2) The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

History.—s. 15, ch. 2008-28.

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EMERGENCY POWERS: COOPERATIVE ASSOCIATIONS

719.128 Association emergency powers.—

(1) To the extent allowed by law, unless specifically prohibited by the cooperative documents, and consistent with s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the cooperative, may exercise the following powers:

(a) Conduct board or membership meetings after notice of the meetings and board decisions is provided in as practicable a manner as possible, including via publication, radio, United States mail, the Internet, public service announcements, conspicuous posting on the cooperative property, or any other means the board deems appropriate under the circumstances.

(b) Cancel and reschedule an association meeting.

(c) Designate assistant officers who are not directors. If the executive officer is incapacitated or unavailable, the assistant officer has the same authority during the state of emergency as the executive officer he or she assists.

(d) Relocate the association’s principal office or designate an alternative principal office.

(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared, which may include turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.

(g) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board of administration, determine any portion of the cooperative property unavailable for entry or occupancy by unit owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.

(h) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board of administration, determine whether the cooperative property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.

(i) Require the evacuation of the cooperative property in the event of a mandatory evacuation order in the area where the cooperative is located. If a unit owner or other occupant of a cooperative fails to evacuate the cooperative property for which the board has required evacuation, the association is immune from liability for injury to persons or property arising from such failure.

(j) 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 cooperative property, regardless of whether the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.

(k) Contract, on behalf of a unit owner, for items or services for which the owner is otherwise individually responsible, but which are necessary to prevent further damage to the cooperative property. In such event, the unit owner on whose behalf the board has contracted is 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. 719.108 to enforce collection of the charges. Such items or services may include the drying of the unit, the boarding of broken windows or doors, and the replacement of a damaged air conditioner or air handler to provide climate control in the unit or other portions of the property.

(l) Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the cooperative documents, levy special assessments without a vote of the owners.

(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions contained in the cooperative documents.

(2) The authority granted under subsection (1) is limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs.

History.—s. 16, ch. 2014-133.

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EMERGENCY POWERS: HOMEOWNERS’ ASSOCIATIONS

720.316 Association emergency powers.—

(1) To the extent allowed by law, unless specifically prohibited by the declaration or other recorded governing documents, and consistent with s. 617.0830, the board of directors, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the association, may exercise the following powers:

(a) Conduct board or membership meetings after notice of the meetings and board decisions is provided in as practicable a manner as possible, including via publication, radio, United States mail, the Internet, public service announcements, conspicuous posting on the association property, or any other means the board deems appropriate under the circumstances.

(b) Cancel and reschedule an association meeting.

(d) Relocate the association’s principal office or designate an alternative principal office.

(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.

(f) 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, turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.

(g) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the association property unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.

(h) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the association property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.

(i) 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.

(j) Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the declaration or other recorded governing documents, levy special assessments without a vote of the owners.

(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions contained in the declaration or other recorded governing documents.

(2) The authority granted under subsection (1) is limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the parcel owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs.

History.—s. 19, ch. 2014-133.