Author: Gerstin

Free Board of Directors Evening Certification Course Date Announced!

Posted on by Gerstin
The Alliance of Delray Residential Associations and Gerstin & Associates are pleased to announce a virtual board of directors certification course for both condominiums and HOAs will be held:

Date: January 14, 2021.

Time: 6 PM to 8 PM.

All attendees will be emailed a Certificate of Completion illustrating Florida’s certification requirement for new directors has been met.

To register, please email vinikoor@bellsouth.net or message Delray Alliance Exec. VP Lori Vinikoor at 561-715-1530.

Although the course is free, registration is required and is limited so please register now.

Barbarians at the Pool Gates!

Posted on by Gerstin

—Safely Reopening Common Areas

By: Joshua Gerstin, Esq.

Three overriding concerns should be the focus of Florida’s community associations as they face ever-increasing demands from members to reopen their common areas: 1) health, 2) safety, and 3) liability. Operating at warp speed should not be a community association’s re-opening objective. Florida’s community associations should strive for a slow but steady, staggered, and thoughtful re-opening of common areas.

Safety First.

The first step in reopening common elements is for a community association to check with their local governing authorities to determine whether there are any restrictions on opening common areas in their city or county. Although Governor DeSantis entered Florida into Phase 3 of the pandemic, the Governor’s most recent order primarily applies only to businesses.  The Governor’s Phase 3 order did not overrule the authority of a county or city from imposing or maintaining its pandemic ordinances pertaining to community associations.  If a community association is planning to reopen a common area, it should pass a board resolution and/or emergency rules with procedures mimicking the requirements of Governor DeSantis’s Executive Orders, local orders in your jurisdiction, and health guidelines from the Center for Disease Control (“CDC”).

Mitigating Liability, Second.

The pandemic is endemic and most community association insurance policies do not cover COVID-19/infectious disease transmission. Community associations must strike a balance between reopening common areas and mitigating the liability risk. As part of a community association’s emergency rules authority, requiring members and guests to sign an attorney-drafted release and hold harmless agreement as a pre-condition for using the common areas is a good idea. However, releases and hold harmless agreements will not entirely insulate community associations from being sued and/or exposed to liability. The best way to avoid liability is to not maintain conditions at your community association that contribute to spreading the virus. Therefore, regardless of requiring releases and hold harmless agreements, community associations must strictly adhere to state and local ordinances, as well CDC guidelines.  

Sources of Information.

Most community associations will find the following resources helpful as they reopen their community association’s common areas Although the information provided is valuable, please check with your association’s attorney before taking any action.

Community Association’s Institute “guidelines for reopening common areas, amenities, and operations. Modify and adapt a letter, sign, and operational advice to your community” is available at:  https://www.caionline.org/pages/coronavirus.aspx

Community Association’s Institute  “Healthy Communities guide, a summary of practical advice and best practices from the Centers for Disease Control and Prevention (CDC) relevant to COVID-19 and community associations.” is available at: https://www.caionline.org/pages/coronavirus.aspx

All state and county emergency and executive orders can be found at:  https://covid19.lobbytools.com/regions

Center for Disease Control COVID-19 can be found at: https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

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Are the million-dollar PPP loans many PBC golf communities collected justified?

Posted on by Gerstin

In the News:

https://www.palmbeachpost.com/news/20200709/are-million-dollar-ppp-loans-some-palm-beach-county-golf-communities-collected-justified

By Mike Diamond Special to The Post

Posted Jul 9, 2020 at 7:30 AM
   

Six golf country clubs in Palm Beach County – Hunters Run, Quail Ridge, Wycliffe, Old Palm, Banyan Cay and the Loxahatchee Club – may have received as much as $18 million in PPP loans through the Small Business Administration.

Six golf course communities are among the more than 3,000 businesses in Palm Beach County that received Payroll Protection Program (PPP) loans through the Small Business Administration (SBA).

An analysis of the loans released this week by the SBA shows that the six clubs may have received as much as $18 million. The SBA had been sued by a number of newspaper organizations over the identity of the loan recipients. When the applicants applied, they were told the loans would be public record.

The program was designed to keep employees on the payroll. If employers do that and comply with the loan conditions, the loans become grants and do not have to be repaid.

The SBA agreed to identify all recipients of loans in excess of $150,000 but only provided ranges of funds received, refusing to reveal the exact amount.

The data released by the SBA do not include the amount of the loan but rather the loan amount a bank has approved. The actual amount of a loan could be smaller than the approved amount. All amounts are in ranges.

Some golf course communities that accepted PPP loans in Palm Beach County have recently spent upward of $10 million on massive improvements to their clubhouses and golf courses.

The clubs that took the money include:

– Hunters Run ($2 million to $5 million) in Boynton Beach.

– Quail Ridge ($1 million to $2 million) in Boynton Beach.

– Wycliffe ($2 million to $2.5 million) in Wellington.

– Old Palm ($1 million to $2 million) in Palm Beach Gardens.

– Banyan Cay Resort Club ($700,000 to $2 million) in West Palm Beach.

– The Loxahatchee Club Homeowners Association ($150,000 to $300,000) in Jupiter.

Scores of other Palm Beach country clubs had applied for the PPP loans. Many were approved but decided to refuse to accept the money on both moral grounds and legal grounds after reading the fine print. Government auditors are expected to review how the money was spent and can ask for the money to be returned and penalties to be imposed if they find misrepresentations.

Fifty-seven country clubs in Florida accepted the PPP funds. According to CNBC, more than 400 country clubs and golf courses received loans throughout the country. The issue of whether it is appropriate for golf course communities to receive PPP loans has been debated.

Assessment revenue a factor

Joshua Gerstin, a Boca Raton lawyer who specializes in homeowner and condominium association law, said he expects one factor the SBA will consider is how much revenue a country club gets from its assessments.

“If it is mostly assessment driven, the country club might have a problem,” he said. “If members continued to pay their assessments, there was no real loss of revenue. But if much of it comes from dining and other sources that members pay outside of their assessments, they could be eligible.”

According to the SBA, businesses must certify that the loan is needed “to support ongoing” operations and that they are unable to access “other sources of liquidity” to support their ongoing operations.

Addison Reserve General Manager Michael McCarthy said once he and his board saw those revised requirements, they decided that it would be wrong to participate in the PPP program.

“There was no way I could certify that we needed it stay in business or that we didn’t have other sources of liquidity,” he noted.

Wycliffe, Quail Ridge: We preserved jobs

Hunters Run President Michael Soroka declined to comment on the issue. According to the SBA, Hunters Run and Banyan failed to provide data to indicate how many jobs were saved by the loans. Wycliffe was chastised on CNBC early Tuesday morning for accepting its loan. The Post has learned that the Wycliffe loan amount was $2 million. It was able to preserve 281 jobs. Wycliffe’s general manager, Rob Martin, released a statement to The Post that read:

“At Wycliffe, we are thankful to all of our employees for their hard work and dedication through these challenging times. We took PPP money because we care deeply about our team and wanted to make sure that we had the ability to provide them a regular paycheck. Following the legal parameters, we only requested and received enough to cover our payroll needs and did not use our loan in any way to disadvantage other companies. We are thankful that we qualified to receive money so that our employees and their families could make ends meet during these challenging times.”

Quail Ridge GM William Langley said the PPP loan was used as intended. He noted that Quail Ridge would have had to have laid off many of its 300 employees without the loan. “We are not a club with deep pockets,” he said.

The Club at Admiral’s Cove in Jupiter was one of those that returned the funds – $3.1 million. “We saw too many issues, both moral and legal,” said CEO Bret Morris. “We did not want to take the risks.” He said Admiral Cove was able to keep its 500 employees working, noting: “We found other things for them to do.”

Finally! Florida Passes Emotional Support Animal Law.

Posted on by Gerstin

Finally, the Florida legislature passedSB1084 a bill regulating the out of control problem of Emotional Support Animals in Florida’s community associations.  SB 1084 was signed into law by Governor DeSantis on July 1, 2020, and takes effect immediately.  The new law provides for the following (a copy of SB 1084 can be found here)(a copy of this page in .pdf can be found here)

1.  Amends Florida’s Fair Housing Act by prohibiting a housing provider, to the extent required by federal law, rule, or regulation, to deny housing to a person with a disability or a disability-related need who has an animal that is required as support. It defines emotional support
animal as an animal that is not required to be trained to assist a person with a disability but, by virtue of its presence, provides support to alleviate one or more identified symptoms or effects of a person’s disability.

2.  The bill prohibits a housing provider from charging a person with an emotional support animal additional fees. It does allow a housing provider to prohibit the animal if it poses a direct threat to the safety, health, or property of others and to request written documentation that reasonably supports that the person has a disability. The supporting information may be provided by any federal, state, or local government agency, specified health care practitioners, telehealth providers, or out-of-state practitioners who have provided in-person care or services to the tenant on at least one occasion. If a person requests to keep more than one emotional support animal, the housing provider may request information regarding the specific need for each animal and may require proof of licensing and vaccination requirements for each animal.

3.  The bill prohibits a housing provider to request information that discloses the diagnosis or severity of a person’s disability or any medical records relating to the disability. The housing provider is authorized to develop a routine process for reasonable accommodation requests relating to emotional support animals, but prohibits the denial of a request based only on a tenant’s failure to use a specific form or process.

4.  The bill creates a new cause for disciplinary action against a health care practitioner’s license for providing supporting information for an emotional support animal, without personal knowledge of the patient’s disability or disability-related need. It also creates the misdemeanor crime of providing false or fraudulent emotional support animal information or documentation, and requires a convicted person to perform 30 hours of community service for an organization serving persons with disabilities, or another entity or organization the court determines
appropriate.

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2020 Hurricane Season, the Definitive Checklist for Florida’s Community Associations.

Posted on by Gerstin

– By Joshua Gerstin, Esq.

(Click here for .pdf version with “checkable” fields for your ease of use!)

 

 Hurricane season begins on June 1st and lasts 5 months, with storms typically peaking in August and September. Due to COVID-19, this hurricane season will be unlike all others.  Properly preparing for this unique hurricane season could truly be a lifesaver. The following hurricane preparation checklist is a combination of over twenty years of community association legal experience and new COVID-19 precautions:

 Things to do now:

COVID-19 Related Hurricane Checklist:

—      Start stocking up on cleaning supplies now. Most stores have limited cleaning supplies or only allow a limited number of purchases.  It is going to take a lot longer to obtain all the cleaning supplies you will need.

—    An abundance of hand Sanitizer, soap, disinfectant spray, disinfectant wipes and face masks are the COVID-19 supplies your community association will need if a hurricane strikes.

—   Plan for extended power outages (generator fuel, ice, flashlights, extra petty cash and installing a landline).  Although FPL has been burying power lines and improving the electrical grid, additional workers will be needed to restore power after a hurricane.  COVID-19 testing of these workers will cause delays and will limit the size of this additional workforce as infected workers are turned away.

—  Purchase locks and non-electronic security equipment to keep buildings and common areas secure from vandalism or looting during an extended power outage.

—  Go to the app store for your mobile phone and download the official FEMA app.  A face-to-face meeting with an adjuster after a hurricane strikes is unlikely. FEMA has made available a phone app that can allow insurance companies to provide estimates without an in-person visit. When the app is running, it can take photos and measurements and gather additional information as you walk through your common areas.

—  Confirm shelter locations, evacuation routes and remind residents to take their pets if they evacuate.  Due to COVID-19 shelters and evacuation routes across Florida have changed. Officials are considering protocols for shelters that range from separating people based on temperature checks to non-congregated sheltering in hotels. Direct residents to https://www.cdc.gov/disasters/hurricanes/covid-19/public-disaster-shelter-during-covid.html for further information about staying virus free in a shelter.

—  Establish a designated area that allows for social distancing where residents can meet for more information after the disaster.

—  Inform residents in writing the extent of help the association will be providing (and not providing) during and after a hurricane. Urge your residents to begin their own preparation and evacuation plans.

—  Update your contact list of owners, board members and staff.  Ensure the list contains the correct contact information for seasonal residents.  Print out the list and place it in a safe location (having it on your computer will do you no good when the power is out).

—  Similar to the children’s game “telephone”, establish amongst the board of directors a chain of command for communications in the event a hurricane strikes. When a hurricane strikes, time should not be wasted by having to contact each board member or answer each board member’s non-emergency information inquiry.

—  Update your vendor list, print it out and place it in a safe location (having it on your computer will do you no good when the power is out).

—  Ensure your building’s plans and blueprints are in a safe location with easy access for first responders or insurance agents. Highlight shut-off valves, power-boxes, lift stations and debris staging areas.

—   Service your association’s lift stations now to avoid sewage overflow if a hurricane strikes.

—   Confirm all of your association’s data is being regularly backed up to the cloud or offsite.

—   Copies of your association’s insurance policies, claims filing information and insurance agent’s contact information should be in paper form and secured in a safe location.

—   Keep handy a list of all bank account numbers, branch locations and authorized association signatories.  Have the board authorize an increased petty cash amount to be stowed away with your hurricane supplies. Credit cards, debit cards and computer checks will not be available if the power is out.

—  Enter into contracts with vendors you will use during an emergency (water removal, debris cleanup repairs, etc.) to ensure they are available immediately after an “all clear” is given. Hurricane Irma struck during the same season a hurricane hit Puerto Rico and Texas.  Many community associations were unable to secure vendors for the cleanup of debris and water because their vendor was assisting with other hurricanes.

—  Pre-determine a staging area for debris and contract for debris dumpsters.

—  Print out the instructions for updating the Association’s website and keep them in a safe location. Designated a member or director to provide frequent website updates regarding your association after a hurricane strikes.  Off-site or seasonal residents will be searching for information and you do not want them contacting management if possible.

—  Print out the instructions for updating the Association’s voicemail and keep them in a safe location. Residents and their loved ones will be calling for information and your association’s outgoing message on its voicemail is an effortless way to keep them updated.

—  Make plans to shut down and secure clubhouses and other amenities, store furniture and to shutoff electric and water.

—  Confirm all drainage areas and lines are working at full capacity.

—  With proper socially distancing, establish a designated area within the association for posting hurricane-related updates.

—  If you have a manned gate, make sure the attendants and the residents know at what point the attendants will be sent home and that the gates will be locked in the open position to provide emergency ingress and egress.

—  Buy battery operated walkie-talkies and consider having a landline installed. Past hurricanes have taught us battery-operated walkie-talkies and a landline are the only communication methods that can be relied on if the power goes out.

—  Stock up on and securely store gasoline, tarps, duct tape, sandbags, submersible water pumps, chain saws, water, flashlights, weather radio, batteries, and a video camera for documenting storm damage.

—   Consult your elevator company on how to properly secure your association’s elevators.

—   Ensure you have keys to each unit in your building.

—  Have your Association’s trees trimmed, including the removal of all coconuts, seeds or potential hurricane “missiles”.

—  Have all dead and dying trees removed. Consider waiting to replant any new trees until after the hurricane season. All new trees should be firmly staked and secured

—  Identify residents who need special care and contact those owners and their families to determine if arrangements have been made for them.  Remind all residents the elevators may need to be shut down or may not operate for an extended period due to a power outage.

—  Inform residents in writing what to expect from the association before, during and after a hurricane strikes.  Advise residents to communicate with friends and relatives elsewhere who will be concerned. Association offices oftentimes become overwhelmed after a storm with relatives calling from out of state to check on them.  In the event of a mandatory evacuation, remind owners to keep all receipts related to additional living expenses, such as hotel accommodations and gasoline if an evacuation is mandated.  These receipts may be reimbursable as part of an eventual insurance claim.

When a hurricane warning has been issued:

—  Bring all objects inside that may be tossed about by wind or rain.

—  Check all drainage areas and remove any debris that would restrict water flow.

—  Lower the water in all pools, fountains and other water features.

—  Shut down, close and securely lock all pools, water pumps (pools, fountains irrigation, etc.)  and recreation areas.

—  Videotape or photograph the building and all common areas with a date stamp to accurately document the property’s pre-storm condition for insurance purposes.

—  Ensure all construction dumpsters are empty.  If possible, arrange to have your regular dumpster emptied.

—  Strategically place sandbags in areas where flooding is anticipated.

After the hurricane has passed:

—   Stay calm, triage the association and focus only on life/safety issues.

—   After the life safety issues are stabilized, focus on damage mitigation and recording the remediation work with photographs and video.  Contact your vendors to come into the association to begin removing debris and items that are wet (drywall).

—  Consider shadowing contractors and vendors as they inspect or work on individual units to avoid stolen property claims later.

—  Continue documenting and recording the damage and remediation efforts for insurance purposes.

—  In times of need, unscrupulous people always try to take advantage. Avoid vendors, contractors and third-party/private insurance adjusters soliciting your association’s business.  If you have no choice, take the time to fully vet each one before signing anything.

—  With the assistance of an attorney experienced in community association hurricane claims (joshua@gerstin.com), contact and file a claim with your association’s insurance carrier.

 

Click here for .pdf version with “checkable” fields for your ease of use!

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COVID-19 and the Reopening of Community Association Pools in Palm Beach County.

Posted on by Gerstin

In the news, Joshua Gerstin, Esq. discusses larger community associations finding it easier to open their pools amid Palm Beach County’s COVID-19 restrictions.

 

 

Click here for the full article and video

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To Open or Not to Open, that is the Coronavirus Question.

Posted on by Gerstin

April 29, 2020   (Click here for .pdf version)

Is it Time to Dip a Toe into the Community Pool?

 

As state and local governments begin gradually easing their lock down and coronavirus related restrictions, community associations are struggling to decide when and how to start reopening their community pools and tennis/pickleball courts. In doing so, each community association is going to have to strictly follow a patchwork of federal, state and sometimes local/city restrictions and guidelines.

There is no need to rush, there are no federal, state or local mandates requiring community associations to open their pools and tennis/pickleball courts. In fact, as long as the federal or state emergency declarations remain in place, community associations can decide to keep their pools and tennis/pickleball courts closed. For some community associations, the governmental requirements to open their pools and tennis/pickleball courts will be too costly or impractical at this point to consider.

The first step to determine the guidelines for opening your community association’s pool and tennis/pickleball court is to locate the state, county and local/city emergency orders governing your community association. The best place to locate the most up to date state, county and local/city emergency orders is at: https://covid-19.lobbytools.com/. For your convenience, I posted the emergency orders pertaining to community association pools and tennis/pickleball courts for Broward County (click here) and Palm Beach County (click here). We are also expecting an order from the governor today as well.

Each community association should review the orders governing their location with the assistance of their attorney. In doing so, you may notice some governmental orders conflict. For example, a city a may require an extra precaution not required by the county. In such, instances, you should check with your attorney before proceeding. As a general rule, the more restrictive requirement should be followed.

Following are some highlights from the Palm Beach County and Broward County emergency orders pertaining to the opening of pools and tennis/pickleball courts:

Palm Beach County:

Continued adherence of CDC guidelines, including while in the pool, is required. Community associations are responsible for ensuring compliance. Therefore, if members violate the guidelines both the member and the association could be fined. The CDC guidelines for social distancing can be found here:

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

A. Tennis Courts: Tennis and outdoor racquet facilities shall reopen provided that CDC Guidelines, including all social distancing guidelines, are adhered to. In addition, the following restrictions shall apply:

1. Singles play only is permitted. No congregating on the court or sidelines is permitted.

2. Locker room and shower facilities shall remain closed. Restrooms must be cleaned and disinfected regularly throughout the day. Soap and water or hand sanitizer and/or disinfectant wipes shall be provided in each restroom.

3. It is the responsibility of staff or management to ensure compliance with this order.

B. Community Pools: Community pools shall reopen provided that CDC Guidelines, including all social distancing guidelines, are adhered to. In addition, the following restrictions shall apply:

1. Pool capacity shall be limited to ensure that social distancing in accordance with CDC Guidelines is maintained at all times.

2. Locker room and shower facilities shall remain closed. Restrooms shall be cleaned and disinfected regularly throughout the day. Soap and water or hand sanitizer and/or disinfectant wipes shall be provided in each restroom.

3. Pool deck seating or lounging shall be restricted to ensure social distancing in accordance with CDC Guidelines.

4. One or more facility staff or management must be present at each facility location to monitor and ensure compliance with the restrictions within this order.

Broward County:

Continued adherence of CDC guidelines, including while in the pool, is required. Community associations are responsible for ensuring compliance. Therefore, if members violate the guidelines both the member and the association could be fined. The CDC guidelines for social distancing can be found here:

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html

A. Pools. The pool deck and pool can only be used by current residents; six (6) foot social distancing CDC guidelines are adhered to; pool deck and pool occupancy are limited to no greater than 50% capacity; and either:

(1) the use of the pool deck and pool are supervised by a sufficient number of
employees or other person(s) designated by the housing development during the hours
in which they are used to ensure compliance with the requirements of this section, and
employees or other designees of the housing development sanitize the facility’s pool
chairs, railings, gates, tables, showers, and other equipment at the pool and pool deck on
a regular basis;

or

(2) all furnishings are removed from the pool deck.

B. Tennis. Use of tennis courts and pickle ball courts is limited to residents only shall be limited to a maximum of two people on the court at any one time (i.e., singles play only), and disc golf courses limited to singles play. Basketball courts are limited to individual use (no multiplayers or pick-up games are permitted, with the exception of games such as “horse”), and social distancing must be maintained at all times. Racquetball courts are limited to a maximum of one person on the court at any one time.

Stay tuned for more. In the meantime, be safe and be well.

 

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Florida Community Associations, Disclosing the Names of the Infected.

Posted on by Gerstin

– Disclosing the Names of Infected Members in Florida’s Community Associations.

By: Joshua Gerstin, Esq.     (click here for .pdf version)

If a community association is aware a member has the coronavirus, the first step for the association should be to alert its members without naming the infected member(s). In this initial alert, the Association should remind its members to follow the guidelines of the local governing authorities and the CDC regarding staying healthy during this pandemic (washing hands, social distancing, etc.).  After sending the initial alert, determining whether the association can or must disclose the identity of an infected member is the troublesome next step.  Although this issue has not been decided by the courts or an administrative agency yet, there are various laws governing the disclosure of confidential medical information Florida’s community associations should familiarize themselves with.

The most widely known law covering medical information confidentiality is the federal Health Insurance Portability and Accountability Act known as “HIPPA”.  According to HIPPA, community associations do not qualify as a “covered entity” (ex. doctor’s office, etc.). As such, HIPPA generally does not apply to most of Florida’s community associations.  However,  Florida Statute §456.057 entitled Ownership and Control of Patient Records; report or copies of records to be furnished; disclosure of information (“Florida Medical Records Act”) and Florida Statute §720.303(5)(c)(4) (for homeowner associations) or §718.111(12)(c)(3)(d) (for the condominium associations) pertain to medical records within an association’s Official Records and may apply if the association has possession of the owner’s medical records indicating he/she is infected.  Based on a “strict reading” it is reasonable to conclude these Florida statutes ( §720.303(5)(c)(4), §718.111(12)(c)(3)(d) and §456.057) prohibit a community association from disclosing the identity of an infected member when knowledge of the infection was obtained from information contained in the infected member’s medical records.

In most instances, a community association will not be in possession of medical records indicating a diagnosis of infection.  Often times, an association will learn a member is infected from the inadvertent or purposeful disclosure by a care provider. In such instances, the association should determine whether the sick member authorized the disclosure to the association.  If so, the association should ask the sick member for written authority to disclose the information identifying him/her as having the coronavirus. Without written approval from the sick member, the purposeful or inadvertent disclosure by a medical professional of an infection does not give the association the ability to broadcast the same information to all of its members free from liability for its actions.

Most often, the association will have third or fourth hand information from an owner who knew or saw something leading them to conclude a member has been infected. Broadcasting such information to other members, although it may seem at least anecdotally accurate, will subject the association to liability.

Some alternative approaches to disclosing the name of the infected member(s) are:

1. Contacting the local health authorities and obtaining their opinion as to whether this person, based on the surrounding demographic, should be brought to a hospital for quarantine or what steps the person and the association should take.

2. Contact the individual to determine whether he or she would consent in writing to the disclosure of the infection. If the answer is yes, no problem, the association can disclose.

3. The Association should determine whether the individual and the in-home care givers are both isolating in the home and not going outside other than in their backyard or on their balcony. The association should routinely check-in with the person/caregivers via telephone and driving by as much as practical. Many condominium associations have security cameras that can monitor whether the infected member has left his/her unit and entered a common area or came into contact with a common element (ex. elevator).  The Association should continue this for the longest maximum time the CDC states a person is infectious. If an infected member flouts the CDC isolation guidelines, the police and local health department should be notified and asked to take action.  Relaying this health related information regarding an infected member to the health or police authorities would most likely not violate the above cited laws.

4.  Florida’s condominium associations should enact an action plan for banning any infected members from using the common areas and common elements (if they are not closed already). These plans should be done at a meeting of the board of directors with its attorney that is closed to the membership due to the discussion of medical information and anticipated litigation. However, the infected member(s) cannot be denied ingress or egress to their units/homes.  Therefore, especially in Florida’s condominium associations, a plan for extra, sustained cleaning of all common elements (ex. elevators) and common areas are a must.

Community association members, especially those in 55+ communities, are rightfully afraid of catching the coronavirus. As we become aware of the increasing amount of infections, community association members will demand their associations release the names of the infected with impassioned pleas for their own safety.  When this happens at your community association, your initial focus should be on alerting members to the many ways they can protect themselves while consulting with the association’s attorney and local health professionals in the development of an action plan.

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Coronavirus & Florida Community Association Emergency Powers.

Posted on by Gerstin

How Florida’s Emergency Power Statutes Can Help Keep Your Community Safe.

(click here for .pdf version)

Both President Trump and Governor DeSantis invoked states of emergency and triggered the statutory emergency powers for Florida’s community associations. Found in Sections 718.1265, and 720.316 of the Florida Statutes, these emergency powers were enacted with hurricanes in mind.  However, the statutes apply whenever a national or state emergency is declared.  As such, these emergency powers can assist community associations in their fight against the spread of the Coronavirus.  Below is the statute with certain parts highlighted in bold you may find useful for your community association. Although the statute set forth below is the version for condominium associations, an identical version applies to homeowner associations. As always, speak with your association’s attorney before implementing any of these statutory emergency powers and follow the most updated directives from your local health officials.

718.1265 & 720.316?Association emergency powers.— (click here for HOA version)

(1)  To the extent allowed by law and unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may, but is not required to, exercise the following powers:

(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.

(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.

(2)  The special powers authorized under subsection (1) 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.

Educational purposes only. Not meant for legal advice, please consult your attorney for legal advice.

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Gerstin & Associates
40 SE 5th St., Suite 610
Boca Raton, FL 33432
Telephone: (561) 750-3456
Fax: (561) 750-8185
Email: joshua@gerstin.com
Web: www.gerstin.com

Gov. DeSantis signs bill banning Community Association Restrictions on Law Enforcement Vehicles

Posted on by Gerstin

It’s the Law.

Law enforcement officers in Florida are now allowed to park their work vehicles in  any location other vehicles are allowed to park despite provisions in a community’s governing Documents to the contrary. The new law applies to Florida’s homeowner association, condominium associations and timeshares.

To read the full text of the law, click here.