GADC Law COVID-19 Webinars Graphic

COVID-19 & HOA/Condo Q&A Webinar

Presented by: Steve Adamczyk, Esq.

 Goede, Adamczyk, DeBoest & Cross recognizes that the COVID-19 virus presents our clients with unprecedented challenges. At GADC, we want to make ourselves available to you, wherever you are, to discuss these challenges and their impact on condominium, co-op, and homeowner associations. Join us for a complimentary live webinar for a brief legal update from shareholder Steve Adamczyk and an opportunity for live questions and answers. Sessions are in demand and limited to 65 people per session, so be sure to register today. Select your date and click to register:

TUE, APRIL 14 – 3PM EDT

WED, APR 15, 4PM – 5PM EDT

FRI, APR 17, 10AM – 11AM EDT

FRI, APR 17, 2PM – 3PM EDT

 

 

After registering, you will receive a confirmation email containing information about joining the webinar.

HOA/Condo Board Certification Class – Webinar

Join us on Thursday, April 9, 2020 at 9:00 AM ET

Goede, Adamczyk, DeBoest & Cross, PLLC is hosting a complimentary Board Certification webinar presented by attorney Richard DeBoest & Steve Adamczyk, who, along with the other attorneys at GADC, have more than 50 years of combined experience practicing community association law.

The Board Certification class is designed for newly elected or appointed directors who need to comply with Florida’s certification requirements within 90 days of being elected or for current Board members who are looking for a refresher. Along with a Certificate of Completion, those in attendance will receive relevant information to their fiduciary duties and how it relates to the operation of their community associations. You’re encouraged to invite your fellow Board Members and friends who are simply interested in learning more about Florida Community Law. Space is limited. Registration required.

REGISTER NOW

Corona Virus / Emergency Powers For Community Associations

Governor DeSantis has declared all of Florida to be under a state of emergency. Thus, the Board now has the emergency powers granted to it pursuant to Statutes 718 (condominiums) and 720 (homeowner associations) and 719 (cooperatives). See below. Although the Statutes are drafted in the context of a natural disaster type emergency (hurricane, fire, flood) it is my opinion that these powers can be exercised by the Board under the current circumstances. So as to the most common questions:

Read Full Corona Virus Emergency Powers FAQ

  1. Can the Board hold a Board meeting with less than 48 hours notice to discuss the Corona Virus?
 Yes.  See item (a) below in each Statute 
  1. Can the Board hold an executive session Board meeting and exclude Owners from attending?
 No. Chapter 718, 719 and 720 only allow a closed board meeting when 1.  The attorney is present to discuss proposed or pending litigation or something that is attorney client privileged;  and 2.  To discuss a personnel matter.  There is no “emergency” exception in the law.
  1. Can the Board close portions of the common elements? 
Yes. See (g) in the Statutes below.  The CDC and other government emergency management officials have recommended closing such facilities so you do not need a specific direction to do so for your property.
  1. Do emergency powers allow the Board to tell other owners if another member is under quarantine or has the virus? 
No.  The Board cannot disclose any private medical information about a resident. 
  1. Can the Board postpone the annual meeting or allow and require members only to attend the annual meeting  or  a Board meeting via a conference call?
Yes. The Board may postpone the annual meeting.  See (b) below.  Further, Section 617.0721(3) Florida Statutes authorizes the Board to allow members to attend a members meeting via conference call and count towards the quorum if the Board can reasonably determine the person on the phone is the legal member/owner of the Unit/Lot.  The Board may also close the location of the annual or Board meeting to physical attendance and require telephonic attendance per the emergency powers. 

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.


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.

(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, 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.

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.

Community Associations and COVID-19 FAQs

Over the past several days we have spoken to many clients with questions on how their Condominium, Homeowners, or Cooperative Association may or must respond to COVID-19 and the myriad of Federal, State, and local orders. Below we will briefly address some of the most common questions.

What does the Statewide Stay at Home Emergency Order Mean for Associations?

Governor DeSantis issued a statewide stay at home order effective at midnight on April 2, 2020. The Order requires all persons to stay at home unless their job provides essential services or unless they engage in essential activities. The list of essential services is lengthy but relative to Associations includes contractors/trades that provide services necessary for maintaining safety, sanitation, and essential operation of residences and structures, legal and accounting services necessary to respond to virus-related orders, landscaping, and pool care. Property management, although not expressly listed, would likely be deemed to be an essential service as it is necessary to maintain and operate Associations. Our law firm will remain open and available to assist our clients with their Association’s legal needs.

How does a Florida State of Emergency effect how my Association operates?

Initially there was some debate as to whether the emergency powers statutes applied in the current environment. However, the Division of Business and Professional Regulation (“DBPR”) has issued Emergency Order 2020-04 for all Condominiums, Cooperatives, and Homeowners Associations governed by Florida Statute Chapter 718, 719, and 720. It provides that while the Florida Statutes on emergency powers were drafted in response to physical damage to property (such as with a hurricane), the statutory emergency powers have the same application under this State of Emergency. Therefore, the Association may operate with emergency powers under Florida Statutes and your governing documents.

What are the emergency powers?

Florida Statutes provide that an Association may schedule Board meetings with less than the required notice. The Association may also close portions of the Association property and prohibit or limit access to the community by guests, tenants, vendors and others. In general, the Association may take such action as is “reasonably necessary to protect the health, safety, and welfare” of the Association owners residents, and guests. Your Declaration may provide greater or fewer emergency powers.

How does my Association conduct a Board meeting?

The Federal government has issued guidelines which require social distancing of at least 6 feet between individuals and bans gatherings of more than 10 people. This makes in-person Board meetings virtually impossible. Until such time as the social distancing and gathering restrictions are lifted, we recommend that all Associations conduct their regular Board meetings via phone conference or video conference. For owner participation you must allow the owners to call in to the conference call or join the video conference.

How does my Association conduct an Annual or Membership meeting?

Currently, we recommend that you postpone any membership meetings so that you can acquire and test the necessary technology to conduct a meeting that will involve substantial meaningful participation from owners, including voting. Keep in mind that any proxies you have received are valid for up to 90 days from the date of the originally scheduled meeting. The Board, management, and attorney should work together to ensure compliance with the Association’s Declaration in rescheduling and conducting the meeting. If you conduct a meeting, you would want to limit or prohibit physical attendance and permit owners to participate remotely via proxy or another authorized method.

Can the Association close a portion of the Association property? And should you?

Yes, under the Florida Statutes emergency powers you can close a portion of the common areas. If any portion of the common areas is used in a manner which violates social distancing or gathering guidelines, then you should close it. This includes pools, spas, gyms and other indoor or outdoor areas. The Association may also close party rooms or gathering spaces to the extent they may be used for gatherings of more than 10 people. If your Association has an onsite management office and your manager is going to continue to report to work in person, we recommend that you limit the office to only necessary occupants and visitors. Keep in mind that you cannot prevent access to the units or homes, so common hallways, foyers, elevators, stairways, and the like must remain open. Miami-Dade County has ordered ALL common amenities be closed until further notice. This has not yet occurred in any Southwest Florida County, but it is quite possible this will occur in the near future.

What happens if someone in the community tests positive for COVID-19?

This is a difficult question that raises several legal issues. The Association should not be actively inquiring about the medical status of residents or guests. However, if the Association acquires actual knowledge that someone has tested positive for COVID-19, it is our opinion that you should notify all owners and residents. However, you must keep the address and identity of the individual confidential. The Association should also ensure it is taking all appropriate precautions to comply with social distancing, limited gatherings, and if possible, increase cleaning of common areas.

How does the Federal Stimulus affect Associations?

The Coronavirus Aid, Relief, and Economic Security Act (“CARES”) has been signed into law. The 800 pages of text allocate over $2 trillion in federal money to bolster the economy during this difficult time. Under CARES, Associations may be eligible to apply for a loan to cover certain operating costs. If the funds from the loan are used in compliance with the Act then the loan, including interest, may be forgiven if the Association qualifies under certain aspects of the law. Feel free to contact our law firm for an application and FAQ to see if you qualify.

Can the Association continue to collect assessments? And should you?

Yes, on both accounts. Without assessment income Associations are unable to provide basic services to the owners and residents. We recommend that Associations continue to aggressively pursue collection of assessments. A strong collection strategy that begins when an account first becomes delinquent will reduce the amount of bad debt in the long term. It will also help owners who become delinquent to structure their income and debt so that they can make payments or other arrangements to resolve it quickly. Ensuring assessments are collected now will help insulate the Association from any future pause in collection.However, if a person requests relief from paying assessments, the Association can negotiate a payment plan with them, however, the Board should document the actual hardship and need before agreeing to a payment plan. Further, we do not recommend that you proactively offer payment plans to all owners but rather deal with each request on a case by case basis.

Are short-term rentals (less than 30 days) permitted? What about long term rentals (more than 30 days)?

As of March 28, 2020, and continuing for at least 14 days, Governor DeSantis issued Executive Order 20-87 banning short-term rentals of less than 30 days. (There are certain exclusions so you should check with your legal counsel.) The ban applies to new bookings as well as any occupant whose rental period began after March 28, 2020. We expect this order to be extended until at least April 30, 2020. Enforcement of this ban is being handled by the DBPR. In certain areas, such as Sanibel Island and Fort Myers Beach, local Emergency Orders have been issued prohibiting ALL new rentals, including short term (less than 30 days) and long term (more than 30 days). You should consult your legal counsel regarding local emergency orders.

How does the Association timely complete its year-end financial report?

The DBPR Emergency Order has suspended the deadline to comply with financial reporting. A new deadline has not yet been established.