Barbarians at the Pool Gates!

Posted on October 2, 2020 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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Florida Community Associations, Disclosing the Names of the Infected.

Posted on March 24, 2020 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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2017 Pending Florida Community Association Legislation

Posted on March 24, 2017 by Gerstin

Click here for PDF version of this article

The weather outside is cool in Florida, but the heat is surely on community associations, their directors, officers and property managers in Florida’s 2017 legislative session.

SB 294 (Condos, Cooperatives, HOAs)

The bill requires associations with less than 50 units to prepare a financial report based on the association’s annual revenues. In addition, if an association fails to provide the financial report to the owners if requested, the owners are prohibited from waiving the financial report for three (3) consecutive years and must file a copy with the State for those three (3) years.

This bill eliminates the option for associations with fewer than 50 units and more than $150,000 in annual revenue to submit less comprehensive annual financial statements.
Penalizes association with enhanced financial reporting requirements if they fail to provide owners with annual financial reports upon request.

HB 295 (HOAs)

Increases penalties for not providing access to official records to $500 per day for up to 30 days.
Imposes financial liability on property managers for failing to provide proper access to association official records.
Revises the timeframe for members to take control of the board of directors from the developer.
Provides for binding arbitration of disputes involving assessments, official records, and enforcement of covenants, rules, and restrictions.
Requires home sellers to provide prospective buyers with the association’s governing documents and operating budget at least 7 days before closing, and allows buyers to terminate the contract within 3 days after receipt of the documents.

SB 318 (HOAs)

This bill provides for a new, alternative procedure for homeowners associations to preserve their governing documents under Florida’s Marketable Record Title Act.
At the first board meeting following each annual meeting of the members, the board of directors must consider whether to preserve the association’s governing documents under Florida’s Marketable Record Title Act.
At least every 5 years, homeowners association must record a notice in the public records containing specific information including, the name and address of the association, a list of its recorded governing documents, contact information for the current property manager, and a legal description of the community.

SB 398 (Condos, Cooperatives, HOAs)

Requires estoppel letters to be issued within 10 days of a request, and caps fees at $200 An additional $100 may be charged if the estoppel letter is requested on expedited basis (3 business days). An additional $200 may be charged if the owner is delinquent.
Creates a maximum fee schedule for multiple estoppel letter requests.
Requires estoppel letters to include a long list of various information beyond standard financial information.
Association must publish on their website the name and address/email address of person responsible for receiving estoppels requests.

SB 744 (Condos, Cooperatives, HOAs)

Condos

Requires bids for work to be performed be maintained in the official records for 1 year.
Eliminates the July 1, 2018 deadline to be classified as a bulk buyer or bulk assignee.

Cooperatives

Prohibits co-owners from serving on the board simultaneously in communities with more than 10 units, unless there not enough eligible candidates to fill all board vacancies.
Allows board members to communicate via email, but prohibits voting via email.
Directors and officers who are over 90 days delinquent in any monetary obligation to the association are deemed to have abandoned their position.

Condos & Cooperatives

Includes electronic records relating to unit owner voting in the list of official records of the association.
Eliminates the option for associations with less than 50 units to prepare a report of cash receipts and expenditures in lieu of complete financial statements.
Removes a restriction prohibiting associations from waiving certain financial reporting requirements for more than 3 consecutive years.
Authorizes the board to adopt a procedure for posting meeting notices and agendas on the association website.
Clarifying that associations under 75 feet high are not required to undergo fire sprinkler/life safety retrofitting and do not need to conduct an opt-out vote.
Extends the deadline to opt-out or apply for a permit for fire sprinkler/life safety retrofitting to December 31, 2018, and extends the deadline to complete fire sprinkler/life safety retrofitting to December 21, 2021.
Clarifies certain rules and procedures for fire sprinkler/life safety retrofitting.

HOAs

Allows board members to communicate via email, but prohibits voting via email.

Requires the annual budget to include reserve accounts for capital expenditures and deferred maintenance which the governing documents require the association to undertake and which exceed $10,000.
Allows a developer to waive reserves until the end of the second fiscal year after the declaration is recorded, after which, only a majority of non-developer owners can waive reserves.
Revises certain voting procedures and calculations for reserve accounts.
Imposes certain limitations on adopting budgets that exceed the prior year budget by more than 15%.
Prohibits write-in nominations at an annual meeting when no election is required because the number of candidates does not exceed the number of vacancies, unless nominations from the floor are required by the bylaws.

SB 950 ( HOAs)

Prohibiting fines from being imposed on a home for 6 months after the death of the owner.
Prohibiting late fees and interest on delinquent assessments for the first year after the death of the parcel owner.
If a fine is imposed against a home after the owner dies, the association must provide written notice to the executor of the owner’s estate at least 5 times by certified mail.

SB 1186 ( HOAs)

Specifies procedures for amending the declaration.
States that declaration amendments restricting rentals only apply to owners who consent to the amendment, or who purchase their home after July 1, 2017.

SB 1258 (Condos)

Imposes fines on board members and officers who knowingly violate any association bylaw or the Condominium Act: $250 for the first violation, $500 for the second violation, and $1,000 for third and subsequent violations. After 3 or more violations, the Department of Business and Professional Regulation may issue an order recalling the director or officer.

SB 1520 (Condos)

This bill makes it more difficult to terminate a condominium association.
Increases the minimum threshold for approving termination a condominium from 80 percent to 90 percent of the total voting interests.
Lowers the threshold for rejecting condominium termination from 10 percent to 5 percent of the total voting interests.
Expands the definition of owners who are entitled to receive fair market value for their condominium unit.

SB 1650 (HOAs)

Allows disputes relating to amendments of the governing documents to be resolved by mandatory arbitration in lieu of presuit mediation.

SB 1652 (HOAs)

Creates specific election procedures for communities with 7500 or more homes.

SB 1682 (Condos)

Prohibits attorneys from representing both an association and its management company.
Prohibits board members and management companies from acquiring units at a foreclosure sale arising from the association’s foreclosure of the unit, or via deed in lieu of foreclosure.
Adds bids for materials, equipment, or services to the list of association official records.
Allows tenants and authorized representatives of members to inspect association official records.
Any board member who knowingly, willfully, and repeatedly refuses to comply with a valid request to inspect the official records is guilty of a second degree misdemeanor
Any person who knowingly or intentionally defaces or destroys accounting records, or who fails to create or maintain required accounting records in order to harm the association or any member, is guilty of a first degree misdemeanor.
Any person who knowingly and willfully refuses to release or produce association official records to facilitate a crime or to prevent a crime from being discovered, is guilty of a third degree felony.
Requiring associations with over 500 units to post many types of official records on its website, including the governing documents, financial statements, contracts with third parties, documents to be considered at membership meetings and notices of such meetings.
Allows board members to serve 2-year terms only if permitted in the bylaws or articles of incorporation. Prohibiting board members from serving more than 4 consecutive 2-year terms unless approved by an affirmative vote of 2/3 of the entire membership
Modifies director recall procedures.
Restricts association from contracting or employing service providers in which a board member has a financial stake.
Makes it a felony to engage in fraudulent voting activities, aid another person in committing fraudulent voting activities, or help someone avoid being caught for committing fraudulent voting activities.
Prohibits any party who provides maintenance or management services to the association from owning more than 50% of the units and purchasing any property subject to a lien of the association.
Sets forth detailed disclosure requirements for directors with possible conflicts of interest
A unit owner who is 90 days delinquent can be suspended from voting only if the delinquency exceeds $1,000 and requires 30-day notice.

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