By Jonathan S. Goldstein, Esq. / Published May 2020
In the best of times, any community association’s duty to protect residents by preventing foreseeable harm is a complicated quandary. In the uncharted reality of the coronavirus pandemic, however, associations are sailing into the heart of a maelstrom with impaired navigational equipment. Associations face a series of unprecedented choices, such as who can enter the property, whether to shut down amenities, and what safety precautions to take to mitigate the spread of the virus. Every day brings new guidance from governmental authorities and agencies, while the distant threat of lawsuits casts circling shadows over the community.
Associations in Florida have a duty to act reasonably to protect the residents, guests, and invitees from foreseeable harm, including unsafe conditions on the property, crimes, and other dangers, and to warn of known hazards. I. That being said, this duty is vague, determined by the circumstances and parties in each case, and its resolution is often a question of fact for a jury to decide. II. For example, in Hemispheres Condominium Asso. v. Corbin, an association was not liable for failing to have a lifeguard at the pool, following other cases that explain that residents assume the risk of using artificial pools and bodies of water. III. In contrast, when a self-closing gate did not work and arguably caused a child to drown in the pool, an appellate court permitted association liability because of the reasonable expectations and dangers created by the faulty gate. IV. Generally, a violation of local laws or ordinances, such as a local ordinance or the building code, evidences a violation of a duty of care. V. Liability is typically described and doled out in terms of the parties’ reasonable expectations and what duties the association assumed by contract, covenants, actions, or representations. VI. In the case of negligence by a security comp-any, or agent of the association, the association might have liability for either being negligent in the hiring or continued use of such company or agent, or under the doctrine that such duty is “non-delegable” (i.e., cannot be shifted away).
Any breach of the duty of care must also cause the injury, and proving such causation stemming from a virus could be nearly impossible, given the myriad of scenarios in which individuals could have contracted the disease and uncertainty regarding incubation periods. In an old Florida Supreme Court case called Lakeland v. Douglas, the Supreme Court found that a city’s sewage plant discharge constituted a trespass and private nuisance to neighboring plaintiffs whose properties were affected by the resulting severe mosquito populations, including the spread of malaria, 143 Fla. 771 (Fla. 1940). However, even though the nuisance was actionable and damages could be awarded for the trespass, damages for loss of employment caused by malaria were found too speculative. VII. While it is conceivable that an association’s utter neglect for emergency orders and coronavirus safety could constitute an actionable nuisance or negligence, any plaintiff would have high hurdles to overcome to establish causation, as well as damages. However, one can envision a scenario in which individuals who have been isolated for weeks on end, with no symptoms or contact outside of the property, then contract the virus at a condominium with operational protocols and policies completely inconsistent with municipal guidance and emergency orders.
Associations have a duty to maintain common elements (or common areas) and this decision-making is subject to the “business judgment rule,” a test of reasonableness. VIII. This standard prohibits a court from substituting its own discretionary judgment for that of the board. These obligations are affected by easements of access and restrictive covenants in the governing declaration of condominium/covenants. While some covenants have very broad disclaimers of liability, such disclaimers are typically disfavored, must be carefully drafted to be enforceable, and may not necessarily prevent all types of liability. Directors must comply with the standard of care for directors in the Florida Not-for-profit Corporation Act. This standard permits reliance on information from those employees or officers believed to be reliable and competent regarding the issue(s) at hand, professionals, and “other persons as to matters the director reasonably believes are within the persons’ professional or expert competence; or… a] committee of the board of directors of which he or she is not a member if the director reasonably believes the committee merits confidence.” XI. Such reliance fails when the director has possession of facts that would render such reliance unreasonable.
Given the announcement of a “State of Emergency” in Florida, there is a question of whether associations can take advantage of “emergency powers” codified in Sections 718.1265, Fla. Stat. (condominiums), and 720.316, Fla. Stat. (HOAs). Without limitation, these powers include the power to use less or different notice than is typically required for meetings, to cancel and reschedule meetings, to name and provide authority to assistant officers for purposes of maintaining operational continuity in the event of director or officer incapacity or unavailability, and to declare portions of the property unavailable for entry to protect health, safety, or welfare based upon appropriate guidance. These powers apply “in response to damage caused by an event for which a state of emergency is declared…” This begs the question of whether illness caused by a virus triggers the powers. While the law can arguably be interpreted to apply, the Division of Florida Condominiums, Time Shares, and Mobile Homes has issued an order suspending the above referenced limitations for purposes of some (but not all) of the enumerated emergency powers. Associations must follow the guidance and decrees of federal, local, state, and county health department and/or government officials. The failure to comply with emergency orders issued by local and state government officials undermines public safety and could be used as evidence of liability. Disregard of these orders could constitute a “reckless disregard” of the safety of others that might pierce the liability immunity typically provided to individual directors.
As associations adopt heightened cleaning protocols for good sanitation, remote work arrangements, additional restrictions on visitors and guests, and new maintenance protocols, communication to the membership should notify the members of changes in policies and important information relating to coronavirus. If an association becomes aware of a diagnosis in the community, it is a reasonable and prudent measure to attempt to alert residents that such a diagnosis exists (without disclosing the identity of the infected individual). Many associations are closing down all access to amenities. While some municipalities do not mandate the closure of these amenities, others, such as Miami-Dade County, are requiring such closures at the time of writing. Closures are a prudent measure regardless.
Even as associations are under-staffed and isolated, there remain the day-to-day responsibilities of maintenance and security. It is uncertain what is to be made of typical injury claims arising from circumstances or risks that would constitute a violation of a duty of reasonable care in the absence of coronavirus. Under the circumstances, is it reasonable for associations to disclaim all responsibility for all but the most essential security and maintenance measures? Associations with reasonable and well-thought-out policies, communications, and contingency plans will be better positioned to defend potential claims while also taking solace in doing a public service.
I. See e.g., Walters v. Beach Club Villas Condominium Association, Inc., 2020 WL 912943, per curium and not final until disposition of timely filed motion for rehearing (Fla. 3d DCA 2020).
II.Machin v. Royale Green Condominium Asso., 507 So. 2d 646 (Fla. 3d DCA 1987)
III.357 So. 2d 1074 (Fla. 3d DCA 1978).
IV.See Machin, 507 So. 2d 646.
V.Id.; see, Parker v. Shelmar Property Owners Association, 274 So.3d 1219 (Fla. 5th DCA 2019)(allowing a jury to find negligence because wheel stops were in violation of the building code).
VI. See e.g., Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587 (Fla. 3d DCA 2004)(in which an association could be found liable for negligent security in relation to a violent crime based upon evidence that the developer represented the existence of security and a functional gate, and the association assumed such obligations without correspondingly maintaining the gate in a way that would protect the residents).
VIII.See §§ 718.111(1)(a) and (3), and 718.113(1), Fla. Stat.; See Farrington v. Casa Solana Condominium Ass’n, Inc., 517 So.2d 70 (Fla. 3d DCA 1987).
IX. See Section 617.0830 (2)(a)-(c), (3), and (4), Fla. Stat.
Jonathan S. Goldstein, Esq.
Partner, Haber Law, P.A.
Jonathan S. Goldstein is a Partner with Miami-based Haber Law, P.A. Goldstein’s practice areas include condominium and homeowners association (HOA) law, construction litigation, and commercial litigation. He can be reached at email@example.com. This article is for informational purposes and is not intended to be and should not be taken as legal advice. For more information on Haber Law, call (305) 379-2400 or visit www.haber.law.