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Stay Ahead of the Curve: Lessons in Technology Learned from Covid-19 by Jeffrey Rembaum, Esq. Kaye Bender Rembaum

Stay Ahead of the Curve: Lessons in Technology Learned from Covid-19 by Jeffrey Rembaum, Esq. Kaye Bender Rembaum

  • Posted: Jun 04, 2020
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Stay Ahead of the Curve:  Lessons in Technology Learned from Covid-19

by Jeffrey Rembaum, Esq.   Kaye Bender Rembaum

 

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.

 

 

Jeffrey Rembaum’s, Esq.

legal practice consists of representation of condominium, homeowners, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of “Rembaum’s Association Roundup,” an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list, and was also named Legal Elite by Florida Trends Magazine.

He can be reached at 561-241-4462.

 

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HOT TO GET THE VOTE- There are two methods of obtaining the votes. by Kaye Bender Rembaum

HOT TO GET THE VOTE- There are two methods of obtaining the votes. by Kaye Bender Rembaum

  • Posted: May 29, 2020
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HOW TO GET THE VOTE – There are two methods of obtaining the votes.

by Kaye Bender Rembaum

Your association’s board has worked for six months to amend and restate the association’s governing documents, including the declaration, articles of incorporation, bylaws, and even the rules and regulations. The board has met with the association’s lawyer on several occasions, reviewed and provided comments on multiple drafts, and even arranged for multiple meetings with the membership to solicit comments and generate enthusiasm. There are two methods of obtaining the votes. The first is to notice a meeting of the members and use proxies for those who cannot attend. The other is to use, the often neglected, but still effective, written consent in lieu of a meeting process.

The time is finally come – the notice package to be sent to the members is in the mail. A week goes by, and very few proxies are returned. Worse still, on the night of the membership meeting, where it is hoped that the amended and restated governing documents will be approved, only several owners personally attend. Needless to say, not only are there an insufficient number of votes, but there isn’t even a quorum. What is the board to do?

All is not lost, and there is still plenty of time to solicit the necessary member votes so long as the meeting for which the proxies were intended is not concluded. Once the membership meeting is concluded, any and all proxies die an immediate death! But, if the membership meeting is continued to a “time, date, and place certain” then, all of the proxies continue to live for 90 days from the date of the meeting for which they were initially intended.

 

If a quorum is attained, but not the number of necessary votes, then, any member in attendance can make a motion to suspend the meeting to a time, date, and place certain, so long as the meeting is resumed within 90 days of the date of the initial meeting. Then, the motion should be seconded. A vote of those in attendance, in person or by proxy, should follow such that the majority cast their vote in favor of the continuance. If neither a quorum is attained, nor the number of necessary votes, then the one item of business that can occur, even without a quorum, is a motion to continue the meeting to a “time, date, and place certain.” Again, the motion should be seconded and a vote of those in attendance, in person or by proxy, obtained.

This “continuance” process can be used as many times as necessary, so long as 90 days from the date of the initial meeting have not expired. Once the 91st day is reached, then all of the proxies are as good as dead. Because the meeting is continued, there is no need to re-notice the meeting each time it is reconvened. However, minutes should be taken so that there is an accurate record.

When describing the continued meeting in the minutes, the word “adjourned” could be interpreted to mean that the initial meeting concluded or it could be interpreted to mean that the meeting was continued, therefore it is advisable to not use the word “adjourned” in the minutes to reflect that the meeting was continued. If the meeting is continued, then use the word “continued.” This will avoid any confusion whatsoever.

Remember, too, that a “general proxy” allows the proxy holder to vote as they so choose, while a “limited proxy” directs the proxy holder to vote as the giver of the proxy instructs.

Utilization of the written consent in lieu of a meeting process will fully avoid the need to have the membership meeting but will still require that the necessary votes are obtained within 90 days. The written consent in lieu of a meeting process is described in Chapter 617 of the Florida Statutes, more commonly known as the “Florida Not For Profit Corporation Act,” and not Chapter 720, Florida Statutes, more commonly known as the “Homeowners’ Association Act.”

Unless otherwise provided in the articles of incorporation, an action required or permitted by the Florida Not For Profit Corporation Act to be taken at a meeting of members may be taken without a meeting, without prior notice, and without a vote if the action is taken by the members having at least the minimum number of votes necessary to authorize the action.

To be effective, the action must be evidenced by one or more written consents describing the action taken, dated, and signed by approving members having the requisite number of votes and entitled to vote on such action, and delivered to the association.

Written consent to take the action referred to in the consent is not effective unless the consent is signed by members having the requisite number of votes necessary to authorize the action within 90 days after the date of the earliest dated consent. Importantly, within 30 days after obtaining authorization by written consent, notice must be given to those members who are entitled to vote on the action but who have not consented in writing. The notice must fairly summarize the material features of the authorized action. Remember, too, that once the necessary written consents are obtained, there should be official recognition of such approval by the board.

Both the proxies and written consents constitute official records of the association and therefore should be stored with the official records of the association.

 

 

 

 

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PALM BEACH & BROWARD COUNTIES RELEASE NEW OPENING ORDER PROCEDURES AFFECTING COMMUNITY ASSOCIATIONS by Kaye Bender Rembaum

PALM BEACH & BROWARD COUNTIES RELEASE NEW OPENING ORDER PROCEDURES AFFECTING COMMUNITY ASSOCIATIONS by Kaye Bender Rembaum

  • Posted: May 21, 2020
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PALM BEACH & BROWARD COUNTIES RELEASE NEW OPENING ORDER PROCEDURES AFFECTING COMMUNITY ASSOCIATIONS

by Kaye Bender Rembaum

To further address the re-opening of both Palm Beach and Broward Counties new Orders have been issued and are already in effect. Links to each new order are located below this article. In all instances, social distancing and wearing of masks when in public is still advised.

Has your association considered adopting new rules consistent with social distancing policies and wearing of face masks when members are in common areas and common elements? Discussion with your association’s attorney is warranted when preparing such rules for board adoption.

Remember too, so long as the State of Florida remains under a State of Emergency as declared by the Governor (due to expire July 7), the statutory emergency powers remain available to community associations which includes the power to close amenities when based upon the advice of licensed professionals or emergency management officials. With that in mind, after consultation with the aforementioned licensed professionals or emergency management officials, amenities can be closed. Moreover, there is no obligation to open amenities if the board believes, that in its reasonable business judgment, doing so would create an unsafe condition and/ or if compliance with local, state, and federal orders cannot be met.

Our comments to assist your understanding of each of these orders are provided in red text. Stay safe!

 

PALM BEACH COUNTY – ORDER 2020-07

In addition to addressing other re-opening directives, Palm Beach County Order 2020-007 addresses tennis courts, swimming pools along with other amenities. It became effective May 18, 12:01 am.

 

TENNIS COURTS:

Applies to Community Associations

Tennis and outdoor racquet facilities may reopen, and doubles play is permitted, provided that CDC Guidelines, including all social distancing guidelines, are adhered to. In addition, the following restrictions shall apply:

  1. No congregating on the court or sidelines is permitted.

  2. Locker room and shower facilities shall remain closed. Restrooms must be cleaned and disinfected regularly throughout the day. Soap and water or hand sanitizer and/or disinfectant wipes shall be provided in each restroom.

  3. It is the responsibility of staff or management to ensure compliance with this order.

  4. Tennis instruction may be conducted on an individual basis where strict social distancing is followed.

 

COMMUNITY POOLS:

Applies to Community Associations, and while the requirement for on-site supervision is removed, the association is still responsible to ensure compliance!!!

  1. For purposes of this Order, “Community Pools” are defined as any and all pool decks and/or pools, whether of a commercial or noncommercial nature, other than one located on a single family residential lot, a single townhouse unit, or any part of a duplex lot, and which is utilized only by inhabitants of that lot or unit. Examples of Community Pools include, but are not limited to, hotel pools, motel pools, apartment building pools, homeowner association pools, condominium association pools, aquatic centers, or any other facilities that are authorized for use by more than one family.​

  • Community Pools may reopen provided that CDC Guidelines, including all social distancing guidelines, are adhered to. In addition, the following restrictions shall apply:​

    • a. Pool capacity shall be limited to ensure that social distancing in accordance with CDC Guidelines is maintained at all times.

    ​b. Locker room and shower facilities shall remain closed. Restrooms may remain open and shall be cleaned and disinfected regularly throughout the day. Soap and water or hand sanitizer and/or disinfectant wipes shall be provided in each restroom.​

    c. Pool deck seating or lounging shall be restricted to ensure social distancing in accordance with CDC Guidelines.

    d. Staff that is authorized to manage the Community Pool, or their designee, including, but not limited to, Community Pool staff, management company staff, volunteers, board members, or any other authorized persons, shall provide notice, either electronically, by mail, and/or by posting at the Community Pool or any other place where messages are traditionally posted, one or more notices indicating that all users of Community Pools shall abide by any and all social distancing guidelines, including, but not limited to, the CDC Guidelines, and that said users of Community Pools bear the responsibility of such compliance and assume the full risk of utilizing the Community Pools.

    e. Staff that is authorized to manage the Community Pool, or their designee, including, but not limited to, Community Pool staff, management company staff, volunteers, board members, or any other authorized persons, shall ensure compliance with all guidelines and requirements set forth in this Order. Such compliance may be accomplished by any reasonable means, including, but not limited to, periodic spot checks, video or other electronic monitoring, and/or compliance hotlines to allow for reporting of violations that are thereafter promptly investigated. In the event that repeated violations occur, staff authorized to manage the Community Pool, or their designee, shall take corrective action, including, but not limited to, closing the Community Pool, limiting access to the Community Pool on a reservation basis only, and/or limiting access to Community Pools to times when staff is present to monitor for compliance.​

    [Emphasis Added]

     

    RESTRICTION OF RECREATIONAL ACTIVITIES IN PUBLIC PARKS, PRIVATE PARKS, AND NATURAL AREAS:

    While not directly applicable to community associations, this section does provide limited guidance as to how similar amenities are being treated by local government.

    1. All park playgrounds, play and exercise equipment shall remain closed.

    2.  Picnic pavilions shall remain closed.

    3.  Use of water fountains is prohibited.

    4.  Basketball courts may be open.

    1. Tennis, racquetball, and pickleball courts may be open.

  • Recreation buildings and gymnasiums may reopen subject to 50% capacity limitations and social distancing guidelines included in State of Florida Office of the Governor Executive Order 20-112 and related subsequent orders.

    •  

    In addition to addressing other re-opening directives, Palm Beach County Order 2020-007 addresses tennis courts, swimming pools along with other amenities.

    It became effective May 18, 12:01 am. Find it HERE or copy and paste this link into your browser:

    https://kbrlegal.com/wp-content/uploads/2020/05/PBC_EO-7-with-attachment.pdf

     

     

    BROWARD COUNTY ORDER 20-10

    Broward County Order 20-10 addresses re-opening community rooms, fitness centers and gyms in housing developments (i.e., community associations) and re-affirms prior pool re-opening mandates. The order went into effect May 18th at 12:01 am.

     

    Attachment 6: COMMUNITY ROOMS, FITNESS CENTERS, AND GYMS IN HOUSING DEVELOPMENTS

    No community room, fitness center, or gym is required to be opened if the housing development does not wish to do so or believes it cannot do so safely and in full compliance with the requirements of this Emergency Order; any decision by a particular housing development is also subject to any applicable internal rules or regulations of that entity.

     

    A. Capacity Requirements

    1. Maximum 50% occupancy. Social distancing requirements do not apply to members of the same household.

    1. Community rooms, fitness centers, and gyms shall be limited to residents of the housing development only. No guests shall be allowed.

    2. Exercise machines, equipment and tables must be rearranged and/or closed for use to ensure at least 6 feet of distance between patrons using such machines, equipment, or tables. Social distancing guidelines provided by the CDC shall be adhered to at all times.

    3. No gatherings or multi-player games (e.g., mahjong, poker, etc.) are permitted in the community rooms between persons who do not reside in the same household.

     

    B. Sanitation and Safety Requirements

    1. Before reopening, the community room, fitness center, or gym (as applicable) must be thoroughly deep cleaned, disinfected, and sanitized. After opening, community rooms, fitness centers, and gyms must be deep cleaned daily.

  • Housing developments shall provide disinfecting wipes, and residents shall be required to wipe down each machine they used after each use.

  • Hand sanitizer shall be available at the facility. Patrons must be informed that they must sanitize their hands when entering the gym and prior to utilizing each piece of equipment.

    •  

    C. Gym and Fitness Center Amenities

    1. Hot tubs, saunas, steam rooms, and shower facilities shall remain closed.

     

    Section 9: Public Community Pools and Private Club Pools.

    Recreational Pool Amenities as defined in Emergency Order 20-08 that were permitted to operate under that order are excluded from the scope of this Emergency Order and may continue to operate subject to the CDC Guidelines and the requirements of Emergency Order 20-08.​  For your ease of reference as per Broward Order 20-08 these include, “pool decks or pools in multi­ family housing developments, condominium developments, condominium hotels, or single-family homeowner associations (collectively, “housing developments”) provided the pool deck and pool are used only by current residents of the housing development; six (6) foot social distancing CDC guidelines are adhered to; pool deck and pool occupancy are limited to no greater than 50% capacity; and either:​

    (a)   the use of the pool deck and pool are supervised by a sufficient number of employees or other person(s) designated by the housing development during the hours in which they are used to ensure compliance with the requirements of this section, and employees or other designees of the housing development sanitize the facility’s pool chairs, railings, gates, tables, showers, and other equipment at the pool and pool deck on a regular basis; or​

    (b)    all furnishings are removed from the pool deck.

    Any use of pool decks or pool areas that deviate from the CDC Guidelines or these requirements remain prohibited.”​

     

    Broward County Order 20-10 addresses re-opening community rooms, fitness centers and gyms in housing developments (i.e., community associations) and re-affirms prior pool re-opening mandates.

    The order went into effect May 18th at 12:01 am. Find it HERE or copy and paste this link into your browser:

    https://kbrlegal.com/wp-content/uploads/2020/05/Broward_EO-20-10-with-att6.pdf

     

    The Kaye Bender Rembaum Team Remains Available To You and Your Community Association.  Please be Safe. 

    1200 Park Central Boulevard South,
    Pompano Beach, FL. Tel: 954.928.0680

    9121 North Military Trail, Suite 200,
    Palm Beach Gardens, FL. Tel: 561.241.4462

    1211 N. Westshore Boulevard, Suite 409,
    Tampa, FL. Tel: 813.375.0731

     

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    Upcoming Events for the week of May 18

    Upcoming Events for the week of May 18

    • Posted: May 21, 2020
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    Upcoming Events for the week of May 18-23

    You can View the events on our Calendar

     

    ASSOCIATION CONTINUITY and OTHER COVID-19 CONCERNS: Episode3

    Thursday May 21, 2020
    12 Noon – 1:00pm
    Castle Group’s Craig Vaughan and Attorneys Michael Bender & Jeffrey Rembaum bring you this event.

     

     

     

    BOARD CERTIFICATION FOR CONDOMINIUMS, COOPERATIVES AND HOMEOWNERS’ ASSOCIATIONS

    May 21 @ 12:00 pm – 2:00 pm
    Learn the basics of Fiduciary duty, financial reporting and budget preparation, meetings and meeting notices, elections, fraud prevention, and much more! Enjoy a fun class while at the same time fulfilling the State’s Board Member certification requirements.
    Provider: 0007237 Course: 9626870
    Instructor: William and Susan Raphan / Katzman Chandler

     

    Condo Craze & HOAs HOSTED BY – ERIC M. GLAZER, ESQUIRE

    SUNDAYS AT 11:00 a.m. ON 850 WFTL

    May 24 @ 11:00 am – 12:00 pm

     

    Become a Licensed Property Manager

    Online Courses for Licensing can be completed while your at home.

    This might be a great time to Take your online Testing and become a CAM

    CAM License Courses and Board Members Certification in Florida

     

     

    ProLicense Florida CAM LICENSE COURSE 

    ProLicense Florida Pre – CAM LICENSE COURSE

    ProLicense Florida Continuing Education

     

    Florida CAM Courses – BECOME A PROPERTY MANAGER (CAM)

    Florida CAM Courses – ONLINE STATE COURSES Pre Licensing

    Florida CAM Courses – ONLINE STATE COURSES Continuing CAM Education

     

    Florida Cam Schools Licensing

    Florida Cam Schools Pre Licensing

    Florida Cam Schools Continuing Education

     

     

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    Have your services been affected by coronavirus?

    Have your services been affected by coronavirus?

    • Posted: May 14, 2020
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    Have your services been affected by coronavirus?

    We know businesses like yours may be struggling to keep customers informed right now.

    To help we’ve released help for Members We want members businesses to communicate changes and promote their available services.

    (For example) a members business could write an article tell us what you offer or that they’re temporarily closed or Let us know that you are OPEN and ready to help Condo’s and HOA’s. We will repost these members articles and send these out to our Industry.

    Once normal service resumes, or you reopen you can easily send another article for the service update, SFPMA will help by sending these to our Industry.

    We have a large reach for our Blog. We send Hundreds of Thousands of Emails to industry professionals and more if you also add every member company and subscriber.

     

     

     

    Need more resources? Think about taking out Advertising on our website or in the Florida Rising Magazine.

    At SFPMA, we’re committed to providing members businesses with as much support as possible during this challenging time. 

    Send us an Email: Membership@sfpma.com

    Frank J Mari / Executive Director

     

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    FIND COURSES TRAINING AND EVENTS IN FLORIDA on THE EVENTS CALENDAR

    FIND COURSES TRAINING AND EVENTS IN FLORIDA on THE EVENTS CALENDAR

    • Posted: May 12, 2020
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    FIND COURSES TRAINING AND EVENTS IN FLORIDA on THE EVENTS CALENDAR

    In these times we have changed our Events to Include Online Webinars, Seminars and Radio Shows you can interact with from the comfort of your homes.

     

    THE EVENTS CALENDAR

     

    Keeping safety first. We have added events to fit the new narrative Providing: Legal Courses, Board Member Courses, Insurance, Collections, Finance, Business, Service Courses and Expos in Florida.

     

                      

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

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

    • Posted: May 09, 2020
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    From One Disaster to the Next

    Hurricane Season Starts June 1

     

        If the effects of the Covid-19 virus were not enough, June 1st 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 Covid-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 in 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:
    1. Conduct board meetings and membership meetings with notice given as is practicable under the circumstances.
    2. Cancel and reschedule any association meeting.
    3. 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.
    4. Relocate the association’s principal office or designate alternative principal offices.
    5. Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.
    6. 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.
    7. 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.
    8. Require the evacuation in the event of a mandatory evacuation order.
    9. 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.
    10. 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.
    11. 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.
    12. 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.
    13. 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.
    14. 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)

     

     

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    Re-opening Amenities In Times Of Uncertainty, Part 2 by Kaye Bender Rembaum

    Re-opening Amenities In Times Of Uncertainty, Part 2 by Kaye Bender Rembaum

    • Posted: May 06, 2020
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    Re-opening Amenities In Times Of Uncertainty, Part 2 by Kaye Bender Rembaum

    by Kaye Bender Rembaum

    In response to our article below, we have received inquiries from readers  regarding the ability of an  association located in Palm Beach County to use volunteers to provide the pool  monitoring as required by Palm  Beach County Emergency Order Number 5.

    In relevant part, the Palm Beach County Order provides that as to the re-opening of community swimming pools the association must have “[o]ne (1) or more facility staff or management be present at each facility location to monitor and ensure compliance with the [Order].” There is no definitive instruction in the Order as to how a community association is to comply this particular requirement. However, based upon the plain meaning of the words, the association should have personnel from management or association staff physically present at the association’s pool facilities during its operating hours to monitor the use of the pool facilities to ensure compliance with the Order.

     

     

    Webinar: Association Continuity During COVID-19

    Register Today

    Thursday, May 7, 2020

    12 Noon to 1:00pm

    Kaye Bender Rembaum attorneys Michael S. Bender and Jeffrey A. Rembaum will be a part of a panel discussion presented by Castle Group, in Episode 2 of “Association Continuity and Other COVID-19 Concerns.” There will be a special focus on the re-opening of community amenities.

    Panelists include:

    Craig Vaughan, Castle Group President

    Michael S. Bender, Esq., BCS

    Jeffrey A. Rembaum, Esq., BCS

    Brendan T. Lynch, AIP AAI, Plastridge Insurance, President

     

    Register to Attend HERE

     

     

    In addition, based upon an April 28, 2020, posting from the Palm Beach County website, it is suggested that an association could also appoint a committee of community volunteers to perform the pool monitoring. The issue created by the Palm Beach County Website posting is that the Order required “facility staff or management” to provide the pool monitoring. The term “volunteers” was not not used.

     

    With that in mind,  if an association located in Palm Beach County decides to use volunteers to provide the pool monitoring function, then the following should be taken into consideration: 

     

    1) If a resident who contracts Covid-19 later sues the association alleging a breach of the Order somehow led to their contracting of the virus, then will the association be in a position to show compliance with the Order when, in fact, volunteers were used? While such a lawsuit is remote, given today’s litigious environment it is not out the question.

    2) Does the association have legal defense coverage which would at least provide for assignment of defense counsel so that the association will not have to go out of pocket in the event its other insurance policies do not provide coverage?

    3) Does the association have insurance coverage in place to cover acts of volunteers?

    4) Does the association have volunteer workers comp type coverage in place?

     

    Although not required by the Order, we suggest that the association consider conspicuously posting or having available as a handout a summary of the CDC Social Distancing Guidelines and the Palm Beach County Emergency Order Number 5 as related to use of community pools.  The following links are provided for your reference:

    Palm Beach County Emergency Order Number 5

    The Palm Beach County Website April 28 posting related to volunteers  

    Remember to also discuss the re-opening plan with your association’s legal counsel. 

     

    Kaye Bender Rembaum, Attorneys at Law

    The law firm of Kaye Bender Rembaum, with its 19 lawyers and offices in Broward, Palm Beach and Hillsborough Counties, is a full service law firm devoted to the representation of more than 1,200 community and commercial associations, developers, and their members throughout the State of Florida. Under the direction of attorneys Robert L. Kaye, Michael S. Bender and Jeffrey A. Rembaum, the law firm of Kaye Bender Rembaum strives to provide its clients with an unparalleled level of personalized and professional service that takes into account their clients’ individual needs and financial concerns.

    http://KBRLegal.com

     

     

     

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    Re-opening Amenities In Times Of Uncertainty Part. 1 by Kaye Bender Rembaum

    Re-opening Amenities In Times Of Uncertainty Part. 1 by Kaye Bender Rembaum

    • Posted: May 04, 2020
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    Re-opening Amenities In Times Of Uncertainty pt. 1

    by Kaye Bender Rembaum

    The re-opening of amenities is anything but easy due to the local Orders being promulgated by Palm Beach, Broward and Miami-Dade Counties. Please be sure to review your County’s specific order(s) to ensure your association remains in compliance. These Orders have similarities but are also VERY different.

    A link to the recent re-opening Orders follows:

    –Palm Beach County, Emergency Order Number 5

    –Broward County, Emergency Order 20-08

    –Miami-Dade County, Emergency Order 21020

     

    As to the Palm Beach County Order, take note that that staff and management are responsible to ensure compliance with the Order with respect to the tennis/racquet court facilities, and that one or more facility staff or management must be present at the pool to monitor and “ensure compliance with the restrictions of the Order.” However, it is not at all clear what measures must be taken to “ensure compliance with this Order.” We do not think it would be sufficient to only post a sign setting forth the CDC Guidelines and the additional restrictions in the Order. Although the tennis/racquet court facilities guidelines, unlike the community pool guidelines, do not require personnel to be present at the tennis/racquet courts to monitor and ensure compliance, in our opinion the board should consider some type of responsible monitoring.

     

    Webinar: Association Continuity During COVID-19

    Register Today

    Thursday, May 7, 2020

    12 Noon to 1:00pm

    Kaye Bender Rembaum attorneys Michael S. Bender and Jeffrey A. Rembaum will be a part of a panel discussion presented by Castle Group, in Episode 2 of “Association Continuity and Other COVID-19 Concerns.” There will be a special focus on the re-opening of community amenities.

    Panelists include:

    Craig Vaughan, Castle Group President

    Michael S. Bender, Esq., BCS

    Jeffrey A. Rembaum, Esq., BCS

    Brendan T. Lynch, AIP AAI, Plastridge Insurance, President

     

    Register to Attend HERE

     

     

    With respect to a swimming pool in Palm Beach County, “facility staff or management” must be present at the pool whenever it is open to monitor and ensure compliance with the restrictions set out in the Order, including social distancing and pool bathroom sanitation. If that cannot be accomplished, then the pool and or bathrooms should remain closed.

     

    When opening a swimming pool in Broward County, their Order provides that the pool may not operate at more than 50% capacity. In person supervision in addition to sanitizing gates, railings and showers is required if the pool deck furnishings are left in place. However, by removing the furnishings, the wording of the Order seems to indicate the need to sanitize gates, railings and showers has been eliminated.  If the decision by the Board is to reopen the pool, whether the furnishings remain or are removed a level of reasonable cleaning/sanitizing should be maintained, as necessary maintenance remains a continuing obligation of the association with regard to common elements/areas, which would require sanitizing the pool gates, handrails, doors, bathrooms and the like minimally as the association normally would,  but clearly should be performed more frequently during these times.

     

    Residents of Miami-Dade County will have to wait a while longer to be able to use their association swimming pool because their Order does not yet address opening association swimming pools.

     

    We have heard that certain county staff are giving their personal interpretations of the Order(s) in response to questions from board members. If you think that relying on these unofficial and unauthorized interpretations will shield your association from immunity, think again! It is far more likely that staff interpretations of the County Orders will not provide any protection whatsoever, most especially if a resident contracts Covid-19 and a lawsuit is brought against the association. Until local governments revise their Orders to provide missing clarity, the plain language, conservative interpretation of these Orders should be followed to help ensure your association is protected as much as possible under the circumstances. Remember, too, that an association can have stricter requirements than those set out in the orders, but cannot adopt less strict requirements.

     

    It is also unclear from the Orders how governmental enforcement of the restrictions is to occur by the County or any municipality, as it seems very (very) unlikely that there will be patrols driving around to check on compliance. Even if such patrols did exist, they could not hope to keep up. The more likely scenario is that the self-reporting of violations could possibly lead to monetary or other penalties against the association. Clearly, if the Board is of the opinion that the requirements in their County’s Order cannot be met at this time, it or are removed is certainly within the reasonable business judgment of the Board to keep those amenities closed. However, that said, reasonable business judgment should not be used by a board to make a decision to open amenities where the board believes it lacks the ability to be fully compliant with their county’s local Orders.

     

     

    We encourage board members to contact their association’s legal counsel for guidance regarding reopening any tennis/racquet courts and/or pool facility, and to continue to monitor the guidelines, directives and orders issued by the CDC and the applicable local authorities. Stay safe.

     

    Kaye Bender Rembaum, Attorneys at Law

    The law firm of Kaye Bender Rembaum, with its 19 lawyers and offices in Broward, Palm Beach and Hillsborough Counties, is a full service law firm devoted to the representation of more than 1,200 community and commercial associations, developers, and their members throughout the State of Florida. Under the direction of attorneys Robert L. Kaye, Michael S. Bender and Jeffrey A. Rembaum, the law firm of Kaye Bender Rembaum strives to provide its clients with an unparalleled level of personalized and professional service that takes into account their clients’ individual needs and financial concerns.

    http://KBRLegal.com

     

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    WEBINAR: ASSOCIATION CONTINUITY & COVID-19 CONCERNS, REOPENING AMENITIES & MORE by Castle Group, Kaye Bender Rembaum and Plastridge Insurance

    WEBINAR: ASSOCIATION CONTINUITY & COVID-19 CONCERNS, REOPENING AMENITIES & MORE by Castle Group, Kaye Bender Rembaum and Plastridge Insurance

    • Posted: May 01, 2020
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    WEBINAR: ASSOCIATION CONTINUITY & COVID-19 CONCERNS, REOPENING AMENITIES & MORE

    Date/Time  May 7, 2020
    12:00 pm – 1:00 pm

    REGISTER HERE

    Castle Group, Kaye Bender Rembaum and Plastridge Insurance invite you to a webinar:  “Association Continuity and Other COVID-19 Concerns”, Episode 2

    You are invited to join episode 2 of “Association Continuity and other COVID-19 Concerns” with a special focus on re-opening community amenities and more. Panelists include:
    • Craig Vaughan, Castle Group – President;
    • Michael S . Bender & Jeffrey A. Rembaum, Kaye Bender Rembaum, Board Certified in Condominium and Planned Development Law
    • Brendan T. Lynch, AIP AAI, Plastridge Insurance Agency, President

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