COVID-19 Update: Your Questions Answered & Emergency Powers Confirmed
by Jeffrey Rembaum’s, Esq. of Kaye, Bender, Rembaum
Rembaum’s Association Roundup
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.
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Most of you reading this already know the names Bill and Susan Raphan and the mark they made on the Florida Condominium Ombudsman’s Office during their 7-year tenure.
