Two and half weeks ago, Hurricane Ian made landfall in Southwest Florida. Hurricane Ian was practically a worst-case scenario for our area and has impacted essentially every person and community. The recovery for many of our communities will take years and the process is only beginning.
In response to Hurricane Ian, the Governor has declared a state of emergency, therefore boards of directors are granted the “emergency powers” contained in the community association statutes.
For condominium associations, the emergency powers are contained in Section 718.1265, Florida Statutes, and provides boards with broad emergency powers in response to damage or injury caused by or anticipated in connection with an emergency for which a state of emergency is declared.
The emergency powers include the authority to:
- Conduct board meetings, committee meetings, election, and membership meetings in whole or in part, by telephone, real-time video conferencing, or similar real time communication with notice given as is practicable. Such notice may be given in any practical manner, including by mail, e-mail, electronic transmission, or posting on the property;
- Cancel and reschedule any association meeting;
- Name as assistant officers persons who are not directors to accommodate the incapacity or unavailability of any officer of the association;
- Relocate the association’s principal office;
- Enter into agreements with local counties and municipalities to assist with debris removal;
- Implement a disaster plan or an emergency plan which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioner;
- Based upon advice of emergency management or public health officials, or upon the advice of licensed professionals, determine any portion of the 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;
- Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located;
- Based upon advice of emergency management/public health officials, or upon the advice of licensed professionals, determine whether the condominium property, association property, or any portion thereof can be safely inhabited, accessed, or occupied;
- Mitigate further damage, injury, or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus or contagion, 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;
- 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 injury, contagion, or damage to the condominium property or association property;
- 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; and
- 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.
However, condominium association board of directors cannot exercise powers which are specifically prohibited by the declaration of condominium, the articles, or bylaws.
Like condominium associations, Section 720.316, Florida Statutes, provides homeowners’ association boards with broad emergency powers in response to damage or injury caused by or anticipated in connection with an emergency for which a state of emergency is declared. Homeowners’ association do not have the power to require evacuation of the association or the power to contract on behalf of owners for items which owners are otherwise individually responsible. Otherwise, the emergency powers homeowners’ association boards may exercise substantially mirrors the powers provided to condominium boards discussed above.
Also, homeowners’ association boards cannot exercise powers which are specifically prohibited by the declaration or other recorded governing documents.
Joseph E. 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.