SO WHAT DO WE DO NOW?  By Eric Glazer, Esq.

SO WHAT DO WE DO NOW?  By Eric Glazer, Esq.

Published by Glazer and Sachs, P.A. March 16, 2020 – Re published by SFPMA

Wow what a difference a week makes!  The world became different this week, like nothing most of us have ever seen or lived through before.  For the time being, this Corona Virus has changed life as we know it, requiring us not to stay inside and hide, but not to tempt fate, while staying smart and taking necessary precautions so that the disease doesn’t spread and we remain healthy.  

I can’t tell you how many calls and e-mails I received this week asking me about canceling meetings, having meetings by phone, shutting down the common areas and preventing visitors.  As you know, I canceled our Board Certification Seminar scheduled for Wednesday.

Here is what I can tell all of you with absolute certainty. NOBODY KNOWS FOR SURE WHAT YOU CAN AND CANNOT DO.  SO….. I CAN ONLY TELL YOU WHAT I THINK……AND WHAT MANY OTHER FLORIDA BAR BOARD CERTIED EXPERTS THINK. But certainly, not all of us agree on everything and some may not agree with my comments below.  However, the Board certified attorneys in this area routinely share ideas on topics on a fantastic e-mail exchange.  It is an honor to be able to share ideas and work with all of them at this crazy time.

So Florida has a law that relates to all community associations in response to damage caused by an event for which a state of emergency is declared.  Well……the entire State of Florida is under a State of Emergency.  However, it is not “in response to damage caused by an event…”  So, does this statute apply?  I’ll go on record and say yes.  What difference does it make why we are under a state of emergency?  The fact is that we are.  The important thing is that we are, not why we are.  Although it is possible, I cannot imagine a judge, arbitrator or the Division taking adverse action against any community association Board of Directors who relies on the emergency powers statute in good faith at this critical time in our history.  So I say….let’s use it.

Many of the statute’s provisions do not apply to our current situation as the statute was clearly designed to apply in response to a devastating hurricane.  I have chosen to leave those portions of the statute in this blog so that our readers can judge for themselves what the true intent of the statute is and if they believe it is applicable to our current situation.  Here is the condo version – similar to the HOA version:

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.

My Comments: Use conference call lines – use GOTO Meeting or ZOOM.  Use any procedure where all unit owners who dial in or log on can hear and even see the Board members, and the owners have the opportunity to address the Board.

(b) Cancel and reschedule any association meeting.

My Comments: Any Association meeting means “any” association meeting.  I know there are many associations that even have their annual meeting coming up.  In an effort to limit large gatherings, Can the annual meeting be canceled and rescheduled?  In my opinion – absolutely.  However, before doing that the Board may consider other reasonable alternatives, such as limiting the physical attendance at the annual meeting to only the Board and management and allowing the others to attend via video conference.

(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.

My Comments: Many of you have called asking if the clubhouse can be closed as well as other parts of the common elements.  At this juncture I would again say Yes.  Any place where large crowds can gather can be closed as the board is certainly aware that every health official recommends no large gatherings.  The common element gym can certainly be closed as that may be the most dangerous area as people that go there are sweating all over the place.

What about limiting guests and visitors to the condo or HOA?  The Chief Judge of the Broward County Courthouse has entered the following order:

(1) The following persons shall not enter any state courthouse located in Broward County, Florida:

(a) Persons who have been in any of the following countries within the last 14 days:

1. China
2. South Korea

iii. Japan

1. Italy
2. Iran

In my opinion – if this order is appropriate for a courthouse where people do not live, it is certainly appropriate for a Board to implement in the building where families do live.  The reality however is that nobody will likely admit to being in any of these places.

(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.

My Comments:  Now this is a much tougher one:  Here, the statute was clearly intended to force EVERYONE out of a building that may be on the verge of collapse.   However, coincidentally, earlier this week, I actually won an injunction hearing where a judge prevented a unit owner from coming into the condominium because he was violent and a danger to the community.  I can certainly make the argument that a person infected with the virus is even more of a danger to the community as that person can potentially infect the entire population of the condominium.  It’s also possible to think that a judge would allow that person to get better in their own home – as long as they promise to self quarantine.  Again…..we are in unchartered waters here.

(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.

See my comments to g above

(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.

My Comments: No question that if the board wanted to triple the amount of personnel necessary for clean-up and disinfectant of the property in order to prevent the spread of the virus, this is perfectly legal.

(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.

So what’s the bottom line…………..I firmly believe that Board of Directors in Florida have the right to rely on the emergency powers statute.

What’s the other bottom line?  Stay calm, cool and collected.  This too shall pass.  While the Board has a lot of options, perhaps the smart move is to simply close down the clubhouse and party rooms for a few weeks, hire more staff to keep the place clean, and put all meetings on hold until further notice, even if they are the annual meeting or budget meeting.  In the grand scheme of things……so what?

In the interim………. be smart.  No large crowds.  Wash your hands.  Repeat and relax.

I wish all of you and your families nothing but good physical health and maybe more importantly mental health over the next few weeks.  And don’t forget to see if your neighbor needs some help, especially if they are elderly and shouldn’t be going into large supermarket crowds at this time.  While it’s important to know the laws……. I think it’s more important at this time to know how to be good people, friends and neighbors.

Glazer & Sachs P.A are members of SFPMA < View their membership page.