It has now been about a month since Hurricane Ian devastated Southwest Florida. The clean-up process is ongoing, and many community associations still have significant amounts of debris to deal with. One option that may be available to community associations to address debris removal is authorizing entry by county contractors to remove materials.
The Stafford Act is a federal law designed to provide federal assistance to state and local governments after a natural disaster. President Biden signed an emergency declaration for Florida after Hurricane Ian that authorized Federal Emergency Management Agency (“FEMA”) to provide assistance for debris removal and emergency protective measures in Charlotte, Collier, DeSoto, Hardee, Hillsborough, Lee, Manatee, Pinellas, and Sarasota. When a municipality obtains FEMA approval for debris removal from private roads and property, condominium and homeowners’ associations will generally need to execute a right of entry agreement to grant permission for the municipality’s contractors to access the property. Generally, community associations are not eligible for direct assistance from FEMA for debris removal.
FEMA’s Public Assistance Program and Policy Guide, effective June 1, 2020, states that prior to a local government removing debris from private property using federal funds, there must be confirmation of authorized access and an agreement to indemnify the government and its employees, agents, and contractors from any claims arising from the removal of debris from private property.
According to resources available from the County, found here, property managers and residential community associations can take proactive steps to prepare their communities in the event of a hurricane or other declared major disaster in Lee County. To the extent such steps were not taken in advance of Hurricane Ian, they can still be taken now to assist with clean up and recovery efforts from Hurricane Ian and in preparation for any future storms.
For Lee County, the “Operational Adjustments” and “Solid Waste” tab on the above referenced website provides that FEMA regulations require that private or gated communities have a current “Right of Entry and Indemnification” form on file with the County before any disaster debris recovery crews are allowed entry into the community. According to the County, the Right of Entry and Indemnification form would only be used as necessary during the recovery period following a declared state of local emergency. Lee County offers a simplified process to submit the paperwork. The form is located here. This form needs to be filled out once a year.
An association’s indemnity obligation, pursuant to such an agreement, is a serious matter. Not only does the association hold harmless the applicable governmental entities, but also its contractors and subcontractors for any property damage, bodily injury, or death to persons on the property resulting from the debris removal. The association should discuss this matter with both its insurance advisors and legal counsel to understand the association’s position should a claim be made in the event of a mishap occurring during the debris removal process.
Further, the association must confirm its legal authority to grant access to the property as the property owner or the authorized agent of the owner. Different legal considerations will typically apply in condominium and homeowners’ associations. For example, does the association have the right to grant access to private lots, which the association does not own? Again, proper legal review of the association’s governing documents and applicable statutes should be undertaken before the board authorizes execution of the agreement.
The “Operational Adjustments” and “Solid Waste” tab on Lee County’s website also provides that residents and business owners in unincorporated Lee County who have the ability and desire to self-haul Hurricane Ian debris while awaiting scheduled roadside pickup from the County can use public drop-off sites. These sites are for both vegetative and structural debris.
For additional hurricane information and resources, please visit Becker’s Hurricane Preparedness & Recovery Guide.
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.