New Legislation Association Emergency Powers
As we are now in the midst of hurricane season, it is important to consider how an association may conduct business in the event that a state of emergency is declared. Several years ago, the Condominium Act was amended to give condominium boards certain emergency powers that could be used in the event that the Governor declared a state of emergency. However, at that time, neither the Cooperative Act or the Homeowners Association Act provided the same powers. As of July 1, 2014, that has changed, and now both Chapters 719 and 720 contain emergency powers for an association board when a state of emergency has been declared by the Governor.
Pursuant to both Sections 720.316 and 719.128, Fla. Stats., and as previously provided in Section 718.1265, Fla. Stat., associations now have the following emergency powers when the Governor has declared a state of emergency:
- The board may conduct board or membership meetings after notice of the meetings has been provided in as practicable a manner as possible.
- Boards may cancel and reschedule association meetings.
- Boards may designate assistant officers who are not directors. If an executive officer is incapacitated or unavailable, the assistant officer will have the same authority during the state of emergency as the executive officer he or she assists.
- Boards may relocate the association’s principal office or designate an alternate principal office.
- Boards may enter into agreements with counties and municipalities to assist with debris removal.
- Boards may implement a disaster plan before or immediately following the event for which the state of emergency is declared, which may include turning on or shutting off elevators, electricity, water, sewer or security systems or air conditioners for association buildings.
- Boards may determine, with the advice of emergency management officials or licensed professionals, that a portion of the association property is unavailable for entry or occupancy.
- Boards may determine whether or not to require evacuation of association property in the event of a mandatory evacuation order, provided that the association shall be immune from liability for any injury to persons or property arising from the failure of a unit owner or other occupant to evacuate the property.
- Boards may mitigate against further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry or other fixtures on or within the property, regardless of whether the unit owner is obligated by the Declaration or law to insure or replace those items.
- Boards may contract, on behalf of a unit owner, for items or services for which the unit owner is otherwise individually responsible, but which are necessary to prevent further damage to the property, and further requires the property owner to reimburse the association for those costs.
- Boards may levy special assessments without a vote of the owners, regardless of whether such authority is contained in the association’s governing documents.
- Finally, boards may borrow money and pledge association assets as collateral, without unit owner approval, to fund emergency repairs and carry out the duties of the association if operating funds are insufficient, regardless of any restrictions contained in the association’s governing documents.
It is important to point out that these emergency powers are limited to the time that is reasonably necessary in order to protect the health, safety and welfare of the association and the unit owners. As such, in the event of a hurricane or other catastrophic event, it is important for board members and management to consult with counsel to determine their authority to act to protect association property during such an emergency.