This week we shall continue our annual review of the legislative changes which affect community associations, and continue with the main bill, Senate Bill 630, which took effect July 1, 2021. For the first two parts of the series, see Community Associations Affected by the 2021 Legislative Session, published on August 1, 2021, and August 8, 2021.
Emergency Powers
Section 718.1265(1) of Condominium Act has been the subject of much attention and debate over the past year as the COVID-19 crisis forced boards to balance the rights of owners against safety and liability concerns.
The amendments to the statute can be summarized as follows:
- The board can use emergency powers in response to damage or injury caused by or “anticipated.”
- The term “emergency” is now defined to include any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results in or may result in substantial injury or harm to the population or substantial damage to or loss of property.
- The board may exercise its emergency powers to conduct board meetings, committee meetings, elections, and membership meetings, in whole or in part by telephone, real-time videoconferencing, or similar real-time electronic or video communication with notice given as is practicable.
- Notice can be given in any practicable manner, including publication, radio, U.S. Mail, the Internet, electronic transmission, public service announcements, and conspicuous posting on the condominium property or association property or any other means the board deems reasonable under the circumstances.
- The previous statute included a number of emergency powers related to implementing a disaster plan, determining whether the condominium property could be safely inhabited or occupied, mitigating further damage, and contracting for the items or services necessary to prevent further damage to the condominium property. The new law amends these provisions by adding language which clarifies that such powers can be used to address issues that may arise because of a pandemic or public health emergency. For example:
- The board may implement an emergency plan before, during or following the event for which a state of emergency is declared. The previous statute only specifically mentioned a “disaster plan.”
- The board may rely on the advice of public health officials or licensed professionals otherwise available to the board to determine any portion of the condominium property or association 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.
- The board may mitigate injury or contagion and may contract, on behalf of any unit owner or owners, for items or services which are necessary to prevent further injury or contagion, including, without limitation, sanitizing the condominium property or association property.
- Emergency powers are limited by the law 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 as reasonably necessary to mitigate further damage, injury, or contagion. This can be argued to mean that a board’s emergency powers may extend beyond the expiration of a declared state of emergency, depending on the circumstances and issues involved.
- Undoubtedly due to political pressure from the real estate industry, the new law also provides that an association may not prohibit owners, tenants, guests, agents, or invitees of a unit owner from accessing the unit and common elements and limited common elements appurtenant thereto for the purposes of ingress to and egress from the unit and when access is necessary in connection with the sale, lease, or other transfer of title to a unit. Further, the board cannot restrict the habitation of a unit for the health and safety of reasons unless a governmental order or public health directive has been issued prohibiting access to the unit. Any right of access is, however, subject to reasonable restrictions by the association.
Next week we will continue with our review of Senate Bill 630, including changes to developer escrow requirements and fines.
Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.