This is the second part of a planned series of posts advising our community association clients and their management companies how to proceed and conduct business during these unprecedented times.
On March 9, 2020, Governor Ron Desantis issued Executive Order Number 20-52, declaring a state of emergency in the State of Florida. On March 19, 2020, Governor Desantis issued an additional Executive Order shutting down public places and limiting beaches to crowds in excess of 10 people. With so many options and outlets shut down, people are staying home. However, if you live in a multi-unit condominium and you pay assessments to enjoy amenities such as a swimming pool or a gym, can those be shut down as well? It appears that they can be on an emergency basis.
[A] Board would be wise to adopt the same policy that Governor Desantis has issued in order to prevent the spread of the virus within the community
Per Fla. Stat. § 718.1265(1), the Board of Directors of a condominium may exercise certain emergency powers “in response to damage caused by an event for which a state of emergency.” These emergency powers include:
(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.
We are in uncharted territory and while there is no official directive to shut down private pools or other condominium amenities, a Board would be wise to adopt the same policy that Governor Desantis has issued in order to prevent the spread of the virus within the community. Every condominium, however, can be unique based on how they were set up. We would always encourage you to speak with legal counsel before taking any of the steps suggested or recommended herein.
It’s also important to note that these are “emergency” powers only. They “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.” Fla. Stat. § 718.1265(2). Similar language also applies for homeowners associations at Fla. Stat. § 720.316.
We urge you all to continue to monitor developments and follow the guidance of public health officials at the Center for Disease Control (CDC) and the Florida Department of Health.