Florida Condominium Association Emergency Powers
Recently, we have been flooded with questions about what a Florida condominium association can do during this Coronavirus pandemic. On March 11, 2020, Florida Governor Ron DeSantis declared a state of emergency. This declaration authorizes associations to take action and the statute discusses it’s emergency powers under Chapter 718.1265, Florida Statutes. In response to the growing health concerns, many communities are shutting down the clubhouse, pool, gym and other common elements where residents gather. While we believe this to be a prudent decision given the perceived reaction to this pandemic, each Florida condominium association will need to analyze their own specific needs during this time.
First, the board and property manager should analyze the current set of community documents because additional association emergency powers can also be listed in a condominium association’s declaration. Regardless of the language of the community documents, the board of directors, in response to an event for which a state of emergency is declared, 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 under 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.
As you can see, under Section (g), (h), and (i), the condominium association board of directors can restrict access to parts of the community that may not be safe. It is very important to listen to the concerns of your unit owners during this pandemic. At a minimum, warning signs might be placed in common elements that see a higher level of human traffic, such as elevators, corridors and meeting rooms. Limitations on the size of groups in meeting spaces would also be appropriate. Association maintenance staff should also make a priority to conduct extra sanitization and cleaning activities in these common spaces.
The powers authorized under the emergency powers section of the Florida Condominium Act are 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. The special emergency powers shall be reasonably necessary to mitigate further damage and make emergency repairs. Any understanding of these powers is critical to the safety of the community during this time.
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