OPERATING YOUR ASSOCIATIONS DURING THE CORONAVIRUS OUTBREAK
Steven R. Braten, Shareholder
Paula S. Marra, Senior Associate
The President of the United States has now declared a National Emergency to combat the coronavirus outbreak. On March 10, 2020, Governor DeSantis declared a state of emergency to likewise combat the coronavirus outbreak in Florida. A number of private and public organizations have suspended large gatherings to implement the social distancing recommendations of the Center for Disease Control (CDC). According to the CDC, “‘social distancing’ means remaining out of congregate settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet or 2 meters).” In addition, local governments and school districts are announcing closures each day in an effort to contain the spread of the corona virus.
SO WHAT SHOULD YOUR ASSOCIATION DO?
The questions boards are grappling with today, tomorrow and until the President and Governor lift their national and state emergency declarations, is what to do to minimize the spread of COVID-19 within their communities? Sections 718.1265 and 720.316, Florida Statues, provide guidance. These statutes provide for “emergency powers” following damage caused by an event for which a state of emergency is declared by the Governor. Until the coronavirus outbreak, legal practitioners, including myself, understood “damage caused by an event” to refer to a hurricane or other similar natural disaster. However, the Governor has broad powers to declare a state of emergency. Specifically, Section 252.36 which is cited in Sections 718.1265 and 720.316 states:
252.36 Emergency management powers of the Governor:
(2) A state of emergency shall be declared by executive order or proclamation of the Governor if she or he finds an emergency has occurred or that the occurrenceor the threat thereof is imminent. The state of emergency shall continue until the Governor finds that the threat or danger has been dealt with to the extent that the emergency conditions no longer exist and she or he terminates the state of emergency by executive order or proclamation, but no state of emergency may continue for longer than 60 days unless renewed by the Governor.
In light of the current declared national and state of emergency, Boards of Directors of a condominium or homeowners association, consistent with their obligations to discharge their duties in good faith and with the care an ordinarily prudent person in a like position would exercise under similar circumstances, may take emergency action to prevent the spread of COVID-19 within their communities. Indeed, the overriding purpose of community associations is to protect the health, safety, and welfare of their communities at large, particularly in the face of a national health crisis such as COVID-19. Such emergency actions include, conducting board meetings to address emergency related issues, including temporarily closing community facilities without holding an open meeting. Such meetings can be conducted by teleconference or video conference to avoid personal gatherings. Members should be advised as soon as practical of all emergency related decisions taken by the Board through all means available, including “publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium [or homeowner association] property or any other means the board deems reasonable under the circumstances.” All emergency actions taken should be ratified at the earliest opportunity that a duly noticed board meeting open to the members can be safely conducted. No actions that are not necessary to the continued safe operation of an association should be taken until this emergency passes.
Associations are also empowered to cancel and reschedule meetings. The Board, or in the absence of the Board to conduct a meeting, the president, as the chief executive officer of the association, may cancel and reschedule such meetings. For example, many of our community associations are still in the process of holding their annual meeting and elections. The Association may temporarily cancel and reschedule such meetings for up to 60 days to avert large gatherings to elect directors. Such meetings can and should be rescheduled for the earliest possible date after emergency conditions no longer exist (i.e., when the Governor of Florida lifts the State of Emergency). The following is a table that may assist boards in determining what powers are available to them to take emergency actions during this crisis.
|Action||Homeowners’ Association||Condominium Associations|
|Disaster Plan||A disaster plan may be implemented before or immediately following the event. This may include, among other things, shutting off elevators, electricity, water, sewer, security systems, or air conditions.||A disaster plan may be implemented before or immediately following the event. This may include, among other things, shutting off elevators, electricity, water, sewer, security systems, or air conditions.|
|Entry onto the Property||Based upon the advice of professionals the Board may determine any portion of the association property unavailable for entry or occupancy.||Based upon the advice of professionals the Board may determine any portion of the association property unavailable for entry or occupancy.|
|Board Meetings||Board meetings and membership meetings may be conducted if notice provided in as practicable manner as possible.||Board meetings and membership meetings may be conducted if notice provided in as practicable manner as possible.|
|Assistant Officers||Assistant officers whom are not directors may be named to accommodate the incapacity or unavailability of the officer. The same authority as is conferred upon the executive officer whom they are assistants to is conferred on the assistant during the state of emergency.||Assistant officers whom are not directors may be named to accommodate the incapacity or unavailability of the officer. The same authority as is conferred upon the executive officer whom they are assistants to is conferred on the assistant during the state of emergency.|
|Association Meetings||May be canceled or rescheduled.||May be canceled or rescheduled.|
|Principal Office||May be relocated or an alternative may be designated.||May be relocated or an alternative may be designated.|
As these are stressful times, we strongly recommend you contact your association’s legal counsel to assist your board of directors navigate your community’s specific issues. Good luck and stay well. This too shall pass.