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
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
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
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
(b) Cancel and reschedule any association
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
(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:
ii. South Korea
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
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
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
(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
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