It’s That Time of Year Again…Now What?

By Brandon R. McDowell, Esq. / Published June 2024

The snowbirds and spring breakers have all returned home. The weather is warmer, and the days are longer. The summer vacationers have not yet arrived but will soon be here. Unfortunately, this also signifies the potential arrival of a dreaded and uninvited guest: a hurricane. While hurricanes are unpleasant, as with many things in life, a little preplanning can go a long way. The time to evaluate, prepare, and plan is now before the season is firmly upon us.

     I have read the following quote many times from different sources: Everyone has a plan until they get punched in the face. Few things punch harder or cause more damage than a hurricane. It is very likely that there will be property damage. How much or how little is to be determined. However, by preparing in advance, you can hopefully minimize some of the damage and simplify the process for recovery after the storm has passed.

     While there are no storms on the horizon, now is the time to begin your preparations. What should those preparations include? Associations and owners should take photographs (time/date stamped) and video of the lot, the unit, any structures, the common areas, personal property, etc. These photos/videos can then be used in the event of damage and when filing a claim. Clearly showing the insurance company the condition of your property pre-storm can help shorten negotiation/litigation with the insurer as to what should be paid on the policy following the storm damage. The preparations should also include a review of your contracts, a review of your insurance policies, and a disaster plan. Each of these topics is discussed in further detail below.

Contracts

     Hopefully, any contract that your association has entered into was reviewed by the association’s counsel. Now is the time to dust off these contracts and “rereview” to determine what services are provided.

1. Management Contract—What extraordinary relief services are provided by your management company? Will the management company oversee repair projects? Does the management contract obligate the association to use its manager in this capacity? Are there additional costs associated with the same?
2. Landscaping Contract—What preventive services can be provided pre-storm (i.e., tree trimming, staking of trees, etc.)? Is there an additional cost associated with this? When can these services be performed? If the services are scheduled, can the schedule be altered and the services provided sooner? What cleanup services will be provided post-storm? What is the time frame for the post-storm cleanup?
3. Security Contract—What relief services will be provided pre- and post-storm? How soon after the storm passes will the association have security personnel in place? What does the contract say with regard to allowing security personnel to leave when a storm warning has been issued?
4. Elevator Contract—What preventive services can be provided pre-storm? What relief services will be provided post-storm? What about a generator? If the association has a generator, does the association have a generator service contract? Who will man the generator to ensure it remains running? If the association does not have a generator for its elevators, what arrangements has the association made in the event the power is out and residents cannot use the elevators?
5. Additional / Miscellaneous Contracts—If the association has electronic gates, is there a service contract for them? If so, what does the contract state regarding securing those gates during a storm? What about manual overrides if there is no power? How about construction that may already be underway in the community? If there is ongoing construction, those contracts should require the builder/contractor to secure all materials in advance of a storm. The same is true of securing dumpsters and/or other trash/recycling receptacles.

Insurance

     Associations and owners alike need to confirm that their insurance premiums have been paid and their policies are up to date. Associations and owners need to have copies of those policies on hand (electronic and hard copy are recommended) and understand what the policy limits are as well as the deductibles. It is also highly recommended that both associations and owners speak with their agent and have their agent explain any exclusions under the policy. It is also important to understand how to file a claim.

     The Condominium Act provides that it is the unit owner’s responsibility to insure the following items (“unit owner list”) against casualty: ceiling, floor, and wall coverings; appliances; water heaters and water filters; built-in cabinets and countertops; electrical fixtures; personal furnishings/property; window treatments; and all improvements or upgrades the owner makes to the unit.

DISASTER Plan

     It is recommended that the association prepare a disaster plan that documents and incorporates important information in a written instrument that may be distributed to all owners. Examples of information to be included are as follows: emergency phone numbers (i.e., fire rescue, police/sheriff, electric company, animal shelters, local hurricane shelters, hospitals, etc.) as well as each of the directors’ phone numbers and the property manager. The plan may include a list of pre-planning activities such as gathering canned food, water, prescription medications, first aid kits, battery-operated radios, flashlights, candles, and other supplies; identifying a safe evacuation route; helping elderly and/or disabled residents; removing personal items from porches and balconies; parking/storing vehicles; etc.

     The day-to-day operation of most associations is a largely document-driven affair. In order to ensure that the association can function post-storm, it is recommended that those documents be secured prior to the storm and maintained in a readily accessible format. While it’s great (and often required) that the documents be available via the association’s website, what happens if there is an extended power outage/limited internet connection? As such, it is recommended that documents be scanned and uploaded to secure internet storage/cloud storage as well as printed. The printed copies should be placed in watertight containers and then secured in a fireproof container. What documents should be included? We recommend (at a minimum) that the following be secured:  all governing documents, insurance policies, financial records (including bank account information along with signatory information), contracts, community plat, any plans/specifications for the community, and resident lists (names, addresses, phone numbers, etc.) as well as any employee records.

     In addition to the contracts listed above, it is also highly recommended that lists with contact information for all professional vendors be created and secured. Such vendors include the  attorney, insurance agent, management company, engineers, contractors, pool company, landscaper(s), elevator company, etc.

     Further, it is also recommended that a list of vital equipment be created and secured. Such equipment includes location of shutoff valves, location of water lines and cutoffs, electrical main circuits, gas lines and cutoffs, sewer clean-outs, etc. Any emergency equipment (i.e., fire extinguishers, defibrillators, etc.) should also be noted.

     As part of the disaster plan, the association should also have a process in place for securing facilities such as the pool. For example, the association needs to ensure that any common areas are secured, the electronic gates are secured, the pool and spa have been prepared, and the pool furniture has been stored. This is also a great time to remind owners of their obligations (i.e. removing furniture and other items from their balconies, closing their shutters, etc.).

     For condominium associations, the law requires that hurricane shutter specifications detailing the type, color, and size of hurricane shutters (or other hurricane protection) that unit owners may install be adopted. If those have not been adopted, now would be the time to do so.

Post-storm

     While this article is focused on pre-storm preparations, it is important to note that after the storm, the association should contact its attorney as well as its insurance agent as soon as it is safe to do. Many associations become immediately inundated with offers from contractors, roofers, disaster-related companies, and adjusters. As the association, you should not sign any contract and/or settle any claim without your counsel’s involvement.

Brandon R. McDowell

Senior Attorney, Becker

     Brandon R. McDowell is a senior attorney in Becker’s community association practice. He provides legal counsel across the entire spectrum of community associations, encompassing condominiums, cooperatives, timeshares, and homeowners’ associations. In addition to aiding in the day-to-day management and governance of these communities, he assists boards of directors, unit owners, and association managers in analyzing and resolving complex contractual and transactional disputes.

     Mr. McDowell also handles residential real estate transactions and construction litigation matters, including issues involving construction contracts and liens, general real estate matters, developer-related issues, and landlord/tenant matters in arbitration, state court, and federal court. Before joining Becker, Mr. McDowell was a managing attorney in the Orlando office of a multi-state law firm, where he practiced all aspects of litigation.

     For more information call 407-875-0955, email bmcdowell@beckerlawyers.com, or visit www.beckerlawyers.com.