It’s Big, It’s Not All Bad, and Not All of it Applies.
Joshua Gerstin, Esq. presenting at the Delray Alliance of Residential Associations on September 4, 2024
Commercial Real Estate
FTC Bans Noncompete Agreements!
On April 23, 2024, the Federal Trade Commission (FTC) reached a final decision on the Noncompete Rule (16 CFR 910). This rule addresses concerns regarding certain types of noncompete agreements that were deemed “unfair methods of competition”. The rule will become effective 120 days after its publication in the Federal Register. The FTC Rule can be found here.
Under the Noncompete Rule, most noncompete agreements for employees earning less than $151,164 per year will be prohibited, as well as those that arise from the sale of a business. This provision aims to protect employees’ rights and prevent undue restrictions on their ability to seek employment opportunities.
It is important to note that the Noncompete Rule includes significant changes compared to the previously proposed version. One notable change pertains to the requirements for employers to inform individuals who may have existing noncompete agreements those agreements are no longer valid. Employers will be obliged to adhere to certain notification procedures, ensuring individuals are properly informed about their rights and obligations concerning these agreements.
Undoubtedly, the new Rule law will face pushback and lawsuits that will try to stop its implementation. Stay tuned for regular updates.
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New Federal Law Mandates Community Association Disclosures!
By: Joshua Gerstin, Esq.
On January 1, 2024, a new Federal law known as the “Corporate Transparency Act” (“Act”) went into effect. The Act requires community association directors (and others) to disclose significant private personal information to the United States government by January 1, 2025.
Although the ACT was designed to pierce “shell” corporations in search of sex trafficking, money laundering, and other crimes, its overly and unnecessarily broad drafting ensnares community associations as not-for-profit corporations.
The ACT requires all corporations to report beneficial ownership information to the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN). Individuals who willfully fail to report the following information are subject to civil and criminal penalties:
• Association name.
• Board members’ names, birthdates, home addresses, and identifying information from a driver’s license, government-issued identification, or valid passport.
• Names, birthdates, home addresses, and identifying information from a driver’s license, government-issued identification, or valid passport of individuals with substantial control. Whether or not this requirement includes property managers is unknown.
Additionally, the federal government has to be notified within thirty days if any of the information already submitted changes (e.g., new directors or property managers). Currently, efforts are underway to exempt community associations from the ACT. However, considering this law was passed over a presidential veto and the inability of Congress to pass legislation, hopes are dim that the law will be changed before compliance is required. For more information or to prepare, below is the link to the website for submission of information for the ACT.
Beneficial Ownership Information Reporting | FinCEN.gov
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2023 Florida Community Association Legislative Update
On May 5, 2023, Florida’s Legislature concluded its annual 60-day legislative session. Unlike previous legislative sessions, this year’s session garnered little media attention while the legislators were busy at work passing many laws impacting Florida’s community associations.
For the .pdf version of this article, click here.
Following is a list of the bills Governor Ron DeSantis recently signed into legislation:
1. Homeowner Associations. House Bill 919 (“Homeowners Association Bill of Rights”) (click here for the full bill). These laws will take effect on October 1, 2023.
Board meeting notices. All Board meeting notices must specifically list the meeting’s agenda.
Owner deposits. If a homeowners association collects a deposit from a member for any reason, including for a tenant or construction, and regardless if it is called a “security deposit,” the association must maintain all funds separately and not commingle them with association funds. Additionally, all funds deposited with the association must be returned within thirty days after receiving notice the reason for which the deposit was collected is complete. If requested by the owner, the association must provide an accounting of the funds deposited within seven (7) days of receiving the request.
Kickbacks. If an officer or director (or property manager) solicits or receives anything of value for him or his family from any person or entity providing goods or services to the Association may be immediately removed from the Board by the remaining Board of Directors. The violator is also subject to civil monetary fines. However, an officer, director, or manager may continue to accept food consumed at a business meeting with a value of less than twenty-five dollars ($25.00) per person or a service or good receipt in connection with the trade fair or education program.
Official Records. The law clarifies any parcel owner, or their authorized representative, may inspect Official Records.
Fines. The existing law was clarified to make it clear that fines may be levied for violations of the declaration, bylaws, or rules. Additionally, the notice to the member from the fining committee must include a description of the alleged violation, the specific action required to cure such violation, if applicable, and the date and location of the hearing. A parcel owner can attend a hearing by telephone or other electronic means. The letter from the finning committee after its hearing must include any applicable fines or suspensions the committee approved or rejected and how the parcel owner or any occupant, licensee, or invitee of the parcel owner may cure the violation, if applicable. All payments for fines are due within five days from the notice to the member.
Voting. Each of the following acts is considered a fraudulent voting activity and constitutes a misdemeanor of the first degree:
- Willfully and falsely swearing to, or affirming at oath or affirmation, or willfully procuring another person to falsely swear to, or affirm an oath or affirmation in connection with or arising out of, voting activities.
- perpetrating, or attempting to perpetrate, or aiding in the perpetration of, fraud in connection with a vote cast, to be cast, or attempted to be cast.
- Preventing a member from voting or preventing a member from voting as he or she intended, by fraudulently changing or attempting to change a ballot, ballot envelope, vote, or voting certificate of the member.
- Menacing, threatening, or using bribery or any other corruption to attempt, directly or indirectly, to influence, deceive, or deter a member when the member is voting.
- Giving or promising directly or indirectly anything of value to another member with the intent to buy the vote of that member or another member or to corruptly influence that member or another member in casting his or her vote. However, this does not apply to any food served which is to be consumed at the election rally or meeting or to any item of nominal value which is used as an election advertisement, including a campaign message designed to be worn by a member.
- Using or threatening to use direct or indirect force, violence or intimidation or any tactic of coercion or intimidation to induce or compel a member to vote or refrain from voting in an election or on a particular ballot measure.
2. Homeowner Associations. House Bill 437 (click here for the full bill). These laws took effect on July 1, 2023:
Flags. If displayed respectfully, a homeowner may display up to two (2) of the following flags:
- The United States flag.
- The official flag of the State of Florida.
- U.S. Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard flag.
- POW-MIA flag.
- A first responder flag.
Storage & Display of Items. An association may not restrict parcel owners or their tenants from installing, displaying, or storing any items on a parcel that are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles.
3. Condominiums. Surfside “glitch” bill, reserves, and inspections. This legislation has already taken effect:
On June 9, 2023, Governor DeSantis signed the “glitch” bill to purportedly fix some issues with the recent “Surfside” related inspection law. The full text of the law is available here, and a .pdf of this portion of the article is available here. Unless otherwise indicated, this legislation takes effect immediately. As with many legislative efforts, determining the effectiveness of the legislation and the discovery of unintended consequences takes time. At the very least, the changes to the Structural Integrity Reserve Study law (SB 154) listed below are a good start:
Reserve Funding:
- Multi-condominium associations operating at least 25 condominiums can use a line of credit as an alternate funding source for reserve funding.
- Reserve funding must be based on the association’s most recent Structural Integrity Reserve Study.
- The requirements to waive reserves or use reserves for an alternate purpose (allowable only until 2025) has changed to a majority of the total membership from a majority of those present at a meeting in which quorum was attained.
- Inflation can be considered by an association when determining reserve funding.
- Depending on specific requirements, a 40 or 50-year certification may be used instead of the visual survey portion of a SIRS.
- The unduly harsh strict liability standard to find a director liable for a breach of fiduciary duty for not complying with the new reserve requirements has been changed. The new standard is now the more reasonable “willful and knowing.”
- Reserves are only required for components an association is responsible for according to its Declaration. Reserves are not needed for items whose useful life exceeds 25 years. However, deferred maintenance reserves for these items are still required.
- Along with architects and engineers, a reserve specialist can now perform the visual inspection portion of a SIRS.
- Exterior doors are now reserve components, and the floor and foundation are not unless the floor and foundation are part of the building’s “structure,” which, of course, they are.
Inspections:
- Insurance premiums are excluded from the 115% calculation that allows members to challenge a budget.
- The Florida Building Code is designated as authoritative to determine the height of a building.
- An association has a year or less (depending on local ordinances) to repair damage identified in an inspection.
- Fourteen days’ notice to members is required upon an association’s receipt from a local governing authority a milestone inspection is required. The notice must also include the date the milestone inspection must be completed.
- An architect and an engineer acting as a licensed design professional may conduct a milestone inspection.
- The definition of “substantial structural deterioration” was broadened to include “substantial structural weakness.”
- A local governing authority has the discretion to extend an inspection deadline for “good cause,” which at the least requires the association to have entered into a contract for a milestone inspection that cannot be completed by the deadline.
- No more than 45 days after receiving the inspection report from the architect or engineer, the association must post a summary on its website, mail it to the members, and make the summary or report available to renters.
- Community association managers no longer have to comply with the structural inspection laws solely because they manage a property “that has a building” on it.
- Local authorities can set a 25-year inspection requirement based on environmental conditions, such as proximity to a shoreline.
- Condominium units in which personal property is covered under a flood master policy or located above specific floors may not be required to have flood insurance.
- As of July 1, 2027, mediation is available to members for certain structural and life-safety disputes.
- Developers must provide prospective buyers with statements regarding milestone inspections, SIRS, and reserve studies, if applicable. The law introduces additional presale notice requirements in contracts to ensure buyer awareness.
4. Condominiums. Safety, Security and Crime Prevention. House Bill (HB) 837 overhauls Florida’s litigation landscape. The law is already in effect and is expected to reduce frivolous liability claims against residential associations (click here for full bill text):
When implemented by an association, the following safeguards exempt an association from liability if a third party commits a crime on their property:
- Security cameras at points of entry and exit that keep video retrievable for 30 days.
- Lighted parking available from dusk to dawn.
- Lighting in common areas, porches, walkways, and laundry rooms from dusk to dawn.
- Deadbolts measuring at least one inch on every door of every unit.
- Locking devices on every window and sliding door not used for community purposes.
- Locked gates at pool areas with fob or key access.
- Peepholes or viewers on doors that do not have windows or window next to doors
- By January 1, 2025, associations must have a Crime Prevention Through Environmental Design (CPTED) study performed by a law enforcement agency or a Florida Crime Prevention Through Environmental Design Practitioner (FCP). CPTED studies should be no older than 3 years old, and the association must substantially comply with the assessment.
- Associations must also provide their employees with safety and crime prevention training by January 1, 2025. This training must familiarize employees with security principles, devices, measures, and standards. After January 1, 2025, associations must train new employees within 60 days. The Florida Crime Prevention Training Institute of the Department of Legal Affairs will develop a proposed curriculum or best practices to implement the training.
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SB 154 Glitch Bill to the Rescue!
On June 9, 2023, Governor DeSantis signed the “glitch” bill to purportedly fix some issues with the recent “Surfside” related inspection law. The full text of the law is available here, and a .pdf of this article is available here. Unless otherwise indicated, this legislation takes effect immediately.
As with many legislative efforts, determining the effectiveness of the legislation and the discovery of unintended consequences takes time. At the very least, the changes to the Structural Integrity Reserve Study law (SB 154) listed below are a good start:
Reserve Funding:
- Multi-condominium associations operating at least 25 condominiums can use a line of credit as an alternate funding source for reserve funding.
- Reserve funding must be based on the association’s most recent Structural Integrity Reserve Study.
- The requirements to waive reserves or use reserves for an alternate purpose (allowable only until 2025) has changed to a majority of the total membership from a majority of those present at a meeting in which quorum was attained.
- Inflation can be considered by an association when determining reserve funding.
- Depending on specific requirements, a 40 or 50-year certification may be used instead of the visual survey portion of a SIRS.
- The unduly harsh strict liability standard to find a director liable for a breach of fiduciary duty for not complying with the new reserve requirements has been changed. The new standard is now the more reasonable “willful and knowing.”
- Reserves are only required for components an association is responsible for according to its Declaration. Reserves are not needed for items whose useful life exceeds 25 years. However, deferred maintenance reserves for these items are still required.
- Along with architects and engineers, a reserve specialist can now perform the visual inspection portion of a SIRS.
- Exterior doors are now reserve components, and the floor and foundation are not unless the floor and foundation are part of the building’s “structure,” which, of course, they are.
Inspections:
- Insurance premiums are excluded from the 115% calculation that allows members to challenge a budget.
- The Florida Building Code is designated as authoritative to determine the height of a building.
- An association has a year or less (depending on local ordinances) to repair damage identified in an inspection.
- Fourteen days’ notice to members is required upon an association’s receipt from a local governing authority, a milestone inspection is required. The notice must also include the date the milestone inspection must be completed.
- An architect and an engineer acting as a licensed design professional may conduct a milestone inspection.
- The definition of “substantial structural deterioration” was broadened to include “substantial structural weakness.”
- A local governing authority has the discretion to extend an inspection deadline for “good cause,” which at the least requires the association to have entered into a contract for a milestone inspection that cannot be completed by the deadline.
- No more than 45 days after receiving the inspection report from the architect or engineer, the association must post a summary on its website, mail it to the members, and make the summary or report available to renters.
- Community association managers no longer have to comply with the structural inspection laws solely because they manage a property “that has a building” on it.
- Local authorities can set a 25-year inspection requirement based on environmental conditions, such as proximity to a shoreline.
- Condominium units in which personal property is covered under a flood master policy or located above specific floors may not be required to have flood insurance.
- As of July 1, 2027, mediation is available to members for certain structural and life-safety disputes.
- Developers must provide prospective buyers with statements regarding milestone inspections, SIRS, and reserve studies, if applicable. The law introduces additional presale notice requirements in contracts to ensure buyer awareness.
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Fannie Mae’s Secret Blacklist of South Florida Condominium Associations.
In the wake of Surfside, some South Florida’s condominium associations cannot find lenders willing to lend for capital projects or to potential buyers. It’s doubtful South Florida’s condominium associations that restored, rehabilitated, and stabilized their operation can ever leave the list.
For more information:
Fannie Mae, Freddie Mac Keep Secret “Blacklist” of Properties (therealdeal.com)
Florida Condominium Safety Bill.
Pass or Fail?
Act Now to Prepare your Condominium Association for the New Condominium Safety Bill.
By Joshua Gerstin, Esq.
Click here for .PDF of this article
Click here for full text of Condo. Safety Bill.
After failing to pass a condominium safety bill after the Surfside tragedy during the regular legislative session, Florida’s legislators agreed to a special legislative session. Surprisingly, Florida’s House and Senate agreed upon a compromise version of the bill in an extended legislative session. Governor DeSantis signed the bill into law on May 26, 2002.
Although the bill takes effect immediately, its major provisions do not begin to take effect until 2024. While 2024 might seem far into the future, the changes caused by this bill will require all condominiums to begin preparing now.
Following are some highlights of the new condo-safety bill (a copy of the bill can be found here):
- Boards will be prohibited from waiving reserve requirements for structural repairs or from using money in those reserves for other purposes.
- Structural safety inspections would be required for buildings three stories or higher by the
year the building turns 30 and every 10 years afterward. - For buildings constructed before July 1, 1992, the first structural inspection must be performed before Dec. 31, 2024.
- Buildings within three miles of the coast must be inspected before the building reaches age 25 and every 10 years afterward.
- A report of the inspection’s findings must identify any substantial structural deterioration, whether the deterioration is dangerous or unsafe, and whether remedial or preventive repairs are recommended.
- Condo associations or governing boards must distribute copies of the report to all unit owners.
- County governments may require commencement of repairs within specified timeframes if a report identifies substantial structural deterioration.
- Every 10 years, condominium boards must produce studies of the reserve funds required for future repairs of structural integrity components.
- When a unit is sold, buyers must be told about the history of the condominium association, the reserve requirement, and the present status of the reserve fund.
- Developers of new buildings will have to fund reserves before transferring control to condominium boards.
- All structural inspection reports and reserve studies are to be part of the associations’ Official Records and must be provided to potential purchasers of a unit.
- It is a breach of an officer or director’s fiduciary duty if the Association fails to complete a Structural Integrity Reserve Study, as necessary.
There are more than 1.5 million condominium units in Florida operated by nearly 28,000
associations, according to a legislative analysis conducted earlier this year, Of those, more than 912,000 are older than 30 years and are the home to more than 2 million residents. However, there are currently only 650 inspectors certified to perform the required inspections. The state’s Division of Florida Condominiums, Timeshares, and Mobile Homes will enforce the bill’s new requirements.
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2021 Florida Community Association Legislative Update.
Another big year for legislation impacting Florida’s community associations. Now is the time for associations to contact their attorneys for guidance. The following items will become law on July 1, 2021, unless vetoed by the Governor. Following is a summary of the highlights. For complete coverage, please click on the various links below to see the bill’s entire text:
Condominiums- SB 630 (available by clicking here):
1. **Collections have changed. See below for important information. Similar to homeowner associations. Condominium association collections require two forty-five-day notices from an attorney compared to the prior two thirty-day notices (SB 56available by clicking here).
2. Renters have the right to inspect and copy only the declaration of condominium, by-laws, and rules.
3. Requiring members to demonstrate any purpose or state any reason for a record inspection is prohibited.
4. Documents required to be posted on a website can be made available via a mobile application (applies only to condominiums with 150 or more units).
5. For condominiums with 150 or more units, instead of posting copies of certain required documents to a website, the association may make those documents available through an application on a mobile device.
6. Discriminatory restrictions in governing documents (e.g., restrictions pertaining to race, color, national origin, religion, gender, or disability) can be amended by the Board without the necessity of a vote by the members.
7. Board member term limits are clarified as beginning on or after July 1, 2018.
8. If condominium association policies do not allow for subrogation against an owner, an owner’s policy cannot allow for subrogation against an association. This bill may have unintended and expensive consequences in the form of higher insurance rates if association insurers cannot recoup losses against a negligent owner.
9. Bids have to be maintained by an association for only one year.
10. Transfer fee maximum amount is increased from $100.00 to $150.00 and will have a CPI adjustment every five years.
11. Recall disputes may go directly to court or arbitration, mediation is no longer an option.
12. Contracts with a service provider owned or operated by a board member (or other relatives with a financial relationship) are no longer prohibited.
13. Associations cannot prohibit the installation of a natural gas fuel station. However, the installation must comply with all federal, state, and local laws.
14. An association can install, operate and charge for an electric vehicle charging station or natural gas fuel station on the common elements or association property. The installation of an electric vehicle charging station or natural gas fuel station will not constitute a material alteration or substantial addition to the common elements or association property.
15. The Division now has jurisdiction to investigate complaints related to association records.
16. Fines are due five days after notice to the violator compared to five days after the Fining Committee approved the fine.
17. Based on the advice of emergency management officials, licensed professionals retained by the association or public health officials, the Board may limit entry or occupancy of any portion of the condominium or association property to protect the health, safety, and/or welfare of the members, tenants, guests, and invitees.
18. During an emergency, the Board may use heightened sanitation protocols and remove debris to mitigate the spread of fungus, mold, or a contagion. In addition, the Board may contract for services or items that assist with the mitigation of damage, further injury, or the spreading of a contagion.
19. Emergency powers are limited to only the amount of time reasonably necessary to protect the health, safety, and/or welfare of members, guests, and invitees, mitigate further damage or injury or make necessary repairs.
20. An association no longer has to wait for a problem to occur. Emergency powers can be used in response to anticipated damage or injury. The term “contagion” was added to the types of emergencies.
21. An association’s emergency powers cannot be used to prohibit owners, tenants, guests, agents, or their invitees from accessing a unit, common elements, and limited common elements if access is necessary to facilitate the sale, lease, or transfer of title to the unit.
22. In response to a records request, condominium associations must provide the owner a certified and itemized list of records produced.
23. Fourteen days’ notice is required for all member meeting notices unless other stated in the association’s by-laws.
24. Service provider conflict of interest provisions have been deleted.
25. Fines are due 5 (five) days after notice from the association.
26. Unpaid fines are no longer considered a type of financial delinquency that would bar an owner from becoming a candidate for a directorship (SB 1966, available by clicking here).
Homeowner Associations- SB 630 (available by clicking here)
1. **Collections have changed. See below for important information.
2. Similar to condominium associations, amendments to homeowner association governing documents that prohibit or regulate rentals will apply only to owners acquiring title after the amendment is passed or to the existing owners that consent. Rental restrictions in a governing document amendment will not apply to owners that do not vote on the amendment or that vote no. Instead, the rental restrictions would apply only after the home is sold. A home transferred to an affiliated entity in which the beneficial ownership remains the same, or a home devised (transferred) through a will, does not give rise to the imposition of a rental restriction amendment. This new law does not apply to governing document amendments seeking to prohibit or regulate rentals for terms of less than six (6) months or seek to limit rentals to no more than three times a year. The new law also does not apply to a homeowners’ association with less than sixteen homes.
3. Records or other information obtained by a community association when a guest visits an owner or resident (security check at gated communities, etc.) are not accessible to members.
4. Rules & Regulations are no longer included in the definition of “governing documents.” The inclusion of Rules and Regulations in the definition was the reason homeowner associations started recording them. Considering the flip-flop nature of the legislature and that most Rules and Regulations have now been recorded, continuing to record new Rules and Regulations makes sense.
5. Sign-in sheets, ballots, voting proxies, and all other records pertaining to parcel owners’ voting must be maintained for one year after the vote.
6. If governing documents do not obligate the developer to create reserves, no reserves are accounted for in the budget, and the association is responsible for the repair and maintenance of
capital improvements for which a special assessment may be necessary, financial reports for the preceding year must contain disclosure language in conspicuous type.
7. Reserves are to be considered mandatory only if the governing documents obligated the developer to provide reserves or the reserve(s) are approved by a majority of the association’s total voting interests.
Applicable to both condominium and homeowner associations
1. **Collections SB 56 (available by clicking here):
An association may not require payment of attorney fees related to a past due assessment without first delivering a written notice of late assessment to the unit owner which specifies the amount owed to the association and provides the unit owner an opportunity to pay the amount owed without the assessment of attorney fees. The notice of late assessment must be sent by first-class United States mail to the unit owner at his or her last address as reflected in the association’s records and, if such address is not the unit address, must also be sent by first-class United States mail to the unit address. Notice is deemed to have been delivered upon mailing as required by this subsection. A rebuttable presumption that an association mailed a notice in accordance with this subsection is established if a board member, officer, or agent of the association, or a manager licensed under part VIII of chapter 346 468, provides a sworn affidavit attesting to such mailing. The notice must be in substantially the following form:
NOTICE OF LATE ASSESSMENT
RE: Unit …. of …(name of association)…
The following amounts are currently due on your account to …(name of association)…, and must be paid within 30 days of the date of this letter. This letter shall serve as the association’s notice of its intent to proceed with further collection action against your property no sooner than 30 days of the date of this letter, unless you pay in full the amounts set forth below:
Maintenance due …(dates)… $…..
Late fee, if applicable $…..
Interest through …(dates)…* $…..
TOTAL OUTSTANDING $…..
*Interest accrues at the rate of …. percent per annum.
2. Covid-19. SB 72 (available by clicking here). If community associations follow safety guidelines properly, they may be immune to COVID-19 related lawsuits. The hurdles for a plaintiff to prove a COVID-19 infection was the fault of an association are sharply increased.
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ALERT! Florida’s Legislature Passes Legislation Impacting Florida’s Community Associations.
SB 630 unanimously passed both the House and Senate. A copy of the first engrossed version bill is available by clicking here. The bill will be sent to the Governor for signature and has an effective date of July 1, 2021.
There are also many other amendments to Florida law and newly drafted laws expected to be passed by the legislature that will impact Florida’s community associations. Check back here often for additional legislation as each one passes. When all of the legislation impacting community associations is passed in their final form, we will distribute a complete analysis of each new and amended Florida statute.
No Shirts, No Shoes, No Shots- No Service?
By Joshua Gerstin, Esq.
Click here for .pdf version
As the COVID-19 vaccine rollout begins to spread across the country two opposing sides are emerging, individuals refusing to get vaccinated and others hoping to refuse them service. Board members across Florida are wondering whether their community association can and should require anybody residing in and/or entering their community to be vaccinated. In short, the answer is not clear. Dealing with a novel virus-induced pandemic brings novel legal challenges without clear answers.
According to the Appellate Court in the case of Hidden Harbour Estates, Inc. v. Norman:
“It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub-society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. . .”
Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975).
The Hidden Harbour Court went on to hold the test to determine a rule’s validity is “reasonableness”. Only if a board of directors has the power to adopt a rule, the rule is reasonable, and the rule does not conflict with some other right contained in a superior governing document, can the association adopt it. In this instance, rules requiring members to be vaccinated may conflict with the easements granted to owners to enjoy the common areas (a superior governing document). In addition to possibly conflicting with a member’s easement to enjoy the common areas, vaccines are not yet available to everyone and members will present religious and medical accommodations. As anyone dealing with emotional support animals in a no animal environment will readily explain, there are many easy-to-find medical providers ready, willing, and able (for a fee) to attest to an ailment or affliction to assist a member avoid a rule. Despite their often-dubious attestations, requiring a vaccine and refusing an accommodation based on a medical or religious exemption is difficult and expensive for community associations to fight. Adding the proverbial fuel to the fire is Florida’s lack of a Covid-19 vaccine mandate and pending legislation to strip the Florida Department of Health’s authority to implement a COVID-19 vaccine mandate (HB 6003).
Another problematic issue is increased association liability. In addition to the ever-increasing “HIPPA type” liability that comes from storing health records, community associations will be placing themselves as the weak (and liable) link in a chain if an unvaccinated member sneaks in. Further stoking potential community liability is the science (many people seem to ignore), vaccinated people can catch and transmit COVID-19. Community associations promoting the safety of mingling in their clubhouse or similar area with only vaccinated people may find themselves in a lawsuit from a person infected in an area promoted as safe.
What can a community association do?
Although requiring members to be vaccinated may not be the best approach, requiring individuals other than members to be vaccinated may be a position worth exploring. Depending on a community association’s governing documents, passing rules requiring all vendors for the common areas and elements to be vaccinated is a good first step. Association’s that rent clubhouse rooms or common elements (tennis, bocce, pickleball, etc.) to groups in which outsiders are allowed to participate may also want to consider a vaccine requirement for the outsiders. However, for the reasons expressed above related to members, it is doubtful a community association can prohibit an unvaccinated guest of a member who is not part of a member-group renting an area from using the area with a member.
Until the emergency declaration by Governor DeSantis expires, Florida’s community associations will have extended leeway to propose rules limiting the spread of COVID-19. However, an emergency declaration is not going to overcome the multiple religious and medical accommodations that will be presented in response to a vaccine mandate. Combined with potential liability in storing medical records and the implied notion a common area with only vaccinated people will be 100% safe, community associations looking to require vaccinations should look outward towards their groups that rent common areas and vendors. Combined with this outwardly focus should be a relentless effort on behalf of every community association to educate and promote to its members through easy-to-understand and readily available information the use of the COVID-19 vaccine.
Stay Informed!
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