By Alan Garfinkel, Esq. / Published July 2017
June 1st was the start of hurricane season. Is your association ready? Andrew, Charley, Jeanne, Frances, Katrina, and Sandy are all powerful reminders that cause hurricane nervousness.
Hurricanes are unnerving because they cause destruction and, at times, loss of life. The most important thing in preparing for any storm is to make sure you, your loved ones, and your residents are safe. The next priority may be your biggest investment—your home.
If you live in a condominium or homeowners association, what needs to be done before the storm strikes and after the storm blows away? Florida association laws recognize associations’ rights to have emergency powers. Florida Statute 718.1265 was enacted for condominiums and Florida Statute 720.316 for homeowners associations.
(1) “…the board…, in response to damage…where a state of emergency is declared in the locale where the condominium is located, may…
(a) Conduct board meetings and membership meetings with notice given as is practicable.” …notice may be given in any practicable manner including …”any other means the board deems reasonable under the circumstances.
(c) Name as assistant officers’ persons who are not directors, which assistant officers shall have the same authority as the executive officers…during the state of emergency…
(f) …following the event for which a state of emergency is declared which may include… shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.
(g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.
(h) Require the evacuation of the condominium property…
(j) Mitigate (conduct emergency repairs to prevent further damage)…, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus…by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property…
(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such an event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by
s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.
(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.
(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient.
(2) The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.
(a)”Conduct board or membership meetings after notice of the meetings and board decisions is provided in as practicable a manner as possible…, or any other means the board deems appropriate under the circumstances.
(c) Designate assistant officers who are not directors. If the executive officer is incapacitated or unavailable, the assistant officer has the same authority during the state of emergency as the executive officer he or she assists.
(f) …immediately following the event for which a state of emergency is declared,..turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.
(g) Based upon the advice …”of licensed professionals retained
by the board, determine any portion of the association property unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.”
(i) Mitigate 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 association property.
(j) Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the declaration or other recorded governing documents, levy special assessments without a vote of the owners.
(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient. …
(2) The authority granted under subsection (1) is limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the parcel owners…
Consider that power may be lost. Print out any information that may be needed if you cannot access a computer, including contact information for board members, members of the association, and management; insurance policies; and important phone numbers, including those for utilities and emergency services.
Make sure to back up your computers and consider having an alternate source where the information is kept—perhaps the cloud, or on a thumb drive or a CD. One thing that is often overlooked is to turn off the irrigation system. Storms involve major water events, and adding additional water may cause more problems. If there are any gas lines or propane tanks on site, turn them off and secure them.
Other good ideas include posting updates to the community website, as long as you have power; having an emergency plan designating where unit owners/residents can congregate if necessary; documenting the property by video and photos; and implementing a disaster plan. Consider-ation should also be given to securing vendors now, to assist in the removal of debris and prevent or reduce the spread of mold/fungus.
We recommend you videotape the association’s property after the storm, just like you did prior to the storm. We also recommend creating a list of damaged areas and following up with a properly noticed board meeting to find out the status of property and any damages from the residents. Your membership should be instructed to document any property damage as well.
As to association property, you need to make sure that you timely notify your insurance carrier of any damages being claimed as a result of the storm. Depending on the type of damage, you may have to report to multiple carriers. If property was damaged due to flood waters, you should consult your flood policy.
It’s a good idea to bring in your association counsel early on regarding any insurance claims. Take care of yourselves and be safe.
Alan Garfinkel, Esq.
Alan Garfinkel has counseled homeowners, townhomes, condominium associations, and individuals throughout Florida from his same Central Florida office for 25 years. He continues to passionately work for those living in and working for community associations. Garfinkel received the highest ethics rating (AV) for more than a dozen consecutive years. Attorney peer review ratings provide objective grades based on confidential evaluations by attorneys and judges measuring a lawyer’s ethical standards and legal ability. Garfinkel Whynot only represents community associations, not big corporations like developers, banks, and insurance companies that can develop conflicts with communities. For more information, visit www.MyGWLaw.com.