It has now been over a month since Hurricane Ian made landfall in Southwest Florida, causing historic levels of damage to our community. Some of the most shocking damage from Hurricane Ian was due to its unprecedented levels of storm surge, causing flooding in large portions of Southwest Florida. However, our community has responded in an amazing fashion to begin the cleanup and restoration work. However, there is a long road ahead for many community associations.
As we continue with the cleanup phase and plan for the restoration phase, there are several significant issues that many community associations will face.
One issue that will potentially be significant is the “FEMA 50% Rule.” Under the National Flood Insurance Program (“NFIP”) requirements, when a project must be “substantially improved,” the project must comply with current regulations for new construction, including elevation.
A property is considered to have “substantial improvement” if the cost of the improvement to the property exceeds 50% of the market value of the building. Project costs include all structural costs, including all materials, labor, built-in appliances, overhead, profit, and other repairs made to damaged parts to the budling worked on at the same time. However, fair market value is calculated on the value of the building and does not include the land.
At this time, it is our understanding that the 50% Rule applies, and there has not been, at the date of this writing, any confirmation that an exception to the Rule will be given to properties affected by Hurricane Ian. Therefore, unless there is relief from the application of the Rule, this will substantially affect the reconstruction of many properties impacted by Hurricane Ian. We will continue to monitor this issue as additional information becomes available. Hopefully, there will be further guidance from both the local governments and FEMA as to how the Rule is to be applied in the areas impacted by Hurricane Ian. However, any community association with questions as to how the FEMA 50% Rule may apply to them, should review this issue with their legal services provider and other appropriate professionals.
Additionally, many community associations are continuing to deal with significant practical, operational challenges following the damage from Hurricane Ian. As discussed in my prior column, the emergency powers provisions of the various community association statutes give associations flexibility in how they operate, including allowing associations to hold board and membership meetings with notice as practical under the circumstances. Such notice may be given by e-mail, publication, U.S. Mail, and posting on an association website, in addition to posting on the property if appropriate.
Such meetings may be held in person or, in whole or in part, by video conference, telephone, or other similar real-time electronic means. However, board meetings, regardless of how noticed or held, are still board meetings open to owners to attend and participate as provided by statute. Further, there is still the requirement that the association keep minutes of such meetings.
While the emergency powers provisions of the statute give community association flexibility in operating during the state of emergency, such flexibility is not unlimited. Further, now that we are moving in to the second month after the storm, many associations should be, to the extent possible, moving toward more normal operations, at least with respect to the holding and noticing of board meetings. If a community association has questions regarding how is should hold its meetings, given its specific circumstances, the association should discuss that issue with its legal services provider.
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 email@example.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.