Q: As a popular columnist for Condominium and HOA residents, can you assist Lee County in providing information for hurricane season 2021? (Betsy Clayton, Lee County Government)
A: I am happy to do so.
According to resources previously provided by the County for this column, 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.
According to information previously provided to me by County officials, FEMA regulations require that private or gated communities have a current “Right of Entry and Indemnification” form on file with Lee County before any disaster debris recovery crews are allowed entry into the community. According to the County, the Right of Entry 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.
Lee County Solid Waste encourages communities located in unincorporated Lee County, the City of Bonita Springs, and the Village of Estero to complete this process. Lee County Solid Waste provides the municipal hauling service for both Bonita and Estero.
My research has found that the Stafford Act is a federal law designed to provide federal assistance to state and local governments after a natural disaster. For example, President Trump signed an emergency declaration for Florida after Hurricane Irma that authorized FEMA to provide assistance for debris removal at 75% federal funding. 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 in order to grant permission for the municipality’s contractors to access the property. Generally speaking, community associations are not eligible for direct assistance from FEMA for debris removal.
FEMA’s 2020 Public Assistance Program and Policy Guide 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.
An association’s indemnity assumption pursuant to such an agreement is a serious matter. Not only does the association hold harmless the applicable units of governments, but also its contractors and subcontractors for any property damage, bodily injury, or death to persons on the property resulting from the debris removal. My advice is to discuss this matter with both the association’s 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.
I think it is very desirable for both associations and the County to “get ahead” of this issue. I have found that dealing with both governmental entities and association boards in the wake of a significant disaster is almost always less than optimal, for a variety of obvious reasons. While we all certainly hope that Mother Nature cuts us a well-deserved break during the 2021 hurricane season, which began June 1, we all know that you never know.
For additional information and resources, please visit Becker’s Hurricane Preparedness & Recovery Guide.
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 firstname.lastname@example.org. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.