BOARDS ARE NOT POWERLESS WHEN IT COMES TO COVID

By Eric Glazer, Esq.

Published August 16, 2021

 

Itís hard to believe that we have been dealing with COVID for a year and a half now.  Itís harder to believe that it looks like we will be dealing with it for at least another year and a half.  Itís a never ending nightmare with no end in sight apparently.  Who would ever have thought this could happen? 

 

While we are constantly being told about social distancing, wearing masks, getting vaccinated and avoiding gatherings, as many of you know it is extremely difficult to mandate and practice these objectives in a condominium setting.  Now that the State of Emergency has been lifted (obviously too soon) it is even harder, because the Boards of Directors donít have the emergency powers any longer.

 

So what do we do now?  Are Boards prohibited from making rules that protect the health, welfare and safety of the community in regards to COVID, simply because the emergency powers statute is no longer in play?  I say HELL NO.

 

Florida Statute 718.123 (for condominiums) states the following:

The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities.

 

Florida Statute 720.304 (for HOAs) states the following:

The entity or entities responsible for the operation of the common areas and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common areas and recreational facilities.

 

In Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 181Ė82 (Fla. 4th DCA 1975), the court explained the unique character of condominium living which, for the good of the majority, restricts rights residents would otherwise have were they living in a private separate residence:

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.  Neuman v. Grandview At Emerald Hills, Inc., 861 So.2d 494, 497 (Fla.App. 4 Dist.,2003)

 

The statutory test for rules regarding the operation of the common elements of the condominium is reasonableness.  Neuman v. Grandview At Emerald Hills, Inc., 861 So.2d 494, 497 (Fla.App. 4 Dist.,2003)

 

There is no doubt in my mind that at this point in time, an association may continue to impose rules and regulations regarding the common elements that the association previously had in effect during the State of Emergency. I doubt highly that an arbitrator or judge would say that limitations on the number of people in the pool, elevator, clubhouse or exercise room during this pandemic is an unreasonable rule. I canít imagine requiring masks in the common areas would be considered an unreasonable rule, especially when the CDC is recommending it. There are obviously other rules that absolutely may be considered reasonable, especially if youíre in a 55 and over community and the population is at great risk.

 

Iím getting calls from associations who are wondering if they are now powerless to take necessary precautions to avoid the spread of COVID. Again, the answer is you are not powerless and on the contrary, never lost your ability to continue to make reasonable rules to protect your community.

 

So what do you need to do? Put the proposed rule on an agenda for a properly noticed Board meeting. At the board meeting, make it extremely clear why the rule is being made. Put in on the record and in a resolution or motion that the Board is making this reasonable rule taking into account the health, welfare and safety of the community. Leave no doubt.

 

And if youíre wrong? I always say that itís better to be tried by 12, than carried by 6.


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About HOA & Condo Blog

Eric Glazer

Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for three decades and is the owner of Glazer and Sachs, P.A. a five attorney law firm with offices in Fort Lauderdale and Orlando.

Eric is Board Certified by The Florida Bar in Condominium and Planned Development Law.

 

Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at 11:00 a.m. each Sunday on 850 WFTL.

   

See: www.condocrazeandhoas.com.

   

Eric is the first attorney in the State of Florida that designed a course that certifies condominium and HOA residents as eligible to serve on a Board of Directors and has now certified more than 20,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.



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