Emergency Powers for Condominium Associations
As I write this blog posting the sky outside is blue and there are no tropical storms threatening our area. However, it is late July and we are approaching the heart of the traditional hurricane season. In 2008, after analyzing the issues faced by condominium association Boards of Directors in the aftermath of a hurricane or other natural disaster, the Florida legislature created Section 718.1265, Florida Statutes, which granted emergency powers to Associations.
First, these emergency powers can only be used if not specifically prohibited by any of your governing documents. As the documents in your community pre-date the creation of this statutory provision that is unlikely but should still be examined.
Second, the Board must still execute such emergency powers in good faith, with the care an ordinarily prudent person in a like position would exercise such powers under similar circumstances, and in a manner the directors believe are in the best interest of the Association.
Third, the emergency powers may only be activated in response to damage caused by an event for which a state of emergency is declared in the locale in which the condominium is located. That means the Governor of Florida declares, through executive order or proclamation, that an emergency has occurred where your condominium is located and there is damage to your property due to that same emergency situation.
Fourth, you may, but are not required to exercise the emergency powers.
Fifth, all such powers shall be limited 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 shall be reasonably necessary to mitigate further damage and make emergency repairs.
The following are a list of powers as presented by the Statute:
(a) Conduct board meetings and membership meetings with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this paragraph.
(b) Cancel and reschedule any association meeting.
(c) Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.
(d) Relocate the association’s principal office or designate alternative principal offices.
(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.
(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners. (As you can see, this paragraph permits the implementation of a disaster plan before the event occurs. In fact, we have assisted many communities in developing such a plan which includes information on shutting down the building, how official records and documents will be protected, etc.)
(g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium 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.
(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.
(i) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.
(j) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, 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.
(k) 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 damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.
(l) 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.
(m) 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. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.
Mark D. Friedman is a senior attorney at the law firm of Becker & Poliakoff. Mr. Friedman may be contacted at CondoLaw@becker-poliakoff.com.
