By Lilliana M. Farinas-Sabogal, Esq. / Published January 2021
No one has a crystal ball to look into the future, but some things are more likely than others. The many media references to the “2020 Bingo Card,” containing any number of unfathomable happenings, supports the idea that no one could possibly have predicted the kinds of questions lawyers are receiving from their community association clients today related to COVID-19. Some communities have insisted on all online/remote meetings, others have required mask wearing throughout the common areas, and yet others have continued to want to limit guests or common area usage due to health and safety concerns. Some communities have had divided boards or divided memberships, in that one portion has desired strict protocols and limitations, while the other portion has wanted “back to normal” as soon as possible.
In the beginning stages of the pandemic, associations were able to guide themselves by state and/or local orders that assisted them in either imposing or enforcing regulations. As time has passed and as these state and local orders have expired or have been terminated, for better or for worse, community associations are being left to figure out what is best for their communities on their own. This experience has impacted community associations in a unique way, and as budget and election meetings are being held, questions have arisen that can be directly traced back to how the particular association weathered or handled the initial COVID-19 issues—questions like, how much authority does (or should) the board of directors have over residents in situations like this? or, is the association fiscally ready to undergo unexpected economic turbulence that can arise when a significant portion of the population simultaneously is required to stay in their units (causing utility expenses to skyrocket) and also loses their jobs or has their incomes decrease (causing delinquencies to increase)?
News of forthcoming vaccines and therapeutics is promising, and should things improve as we all hope they do, some of these COVID-19 related questions may simply become memories. However, many of them will have lasting effects on community associations—and this may not be a bad thing. For example, many communities that offered remote participation in meetings and online voting for the first time saw marked increases in their community’s participation in what used to be poorly attended meetings. In turn, this led many owners, who might not have previously had time to become engaged in their community, to see the hard work that goes into operating a community association. Maybe this spurred new candidates to run for the board of directors or new volunteers to assist in committees. Communities that noticed positive results like this should consider continuing those things that worked. If more owners attended the meetings when they could do so by Zoom, or if more owners cast their votes when offered online voting methods, there is no reason to stop offering these as options. Talk with your community association attorney about how and whether remote vehicles for attendance and participation can be used in the future and in the absence of a health issue that requires alternative methods.
If less positive effects were noticed, community associations should have discussions with their professionals to better manage things in the future. For example, if detrimental financial effects were felt and the association found itself unprepared, it may be feeling those effects for some time. The association should meet with its banking and legal professionals to discuss possible options for lines of credit or loans to help bridge the gap, while it cures its delinquencies and catches up from 2020 through its 2021 budget or special assessments. If associations found themselves hamstrung by older documents that limit their authority to regulate the actions of owners, residents, or guests in the community, a thorough review and potential updating of governing documents may be in order to ensure the board of directors has the necessary authority to implement and enforce restrictions or limitations as may be necessary. If the association is facing challenges with its electrical or plumbing capacities due to outdated building infrastructure, an engineering study of its utility capacity or need for upgrades in wiring or plumbing should be undertaken. Insurance policies should be reviewed with the association’s professionals to determine what it can reasonably expect to be protected from and what is required of it in order to seek such protections.
In short, even if the coming year gives community associations a much-needed respite from serious and difficult health, fiscal, and civic issues, associations should take the time to review what went right and what went wrong. Not everyone will agree on the answers to those questions, but most will agree that it is in the best interest of the community that the association have clear answers from its professionals regarding the breadth of its options and advice on how it might avoid similar problems in the future. Here’s hoping 2021 gives us all this opportunity!
Lilliana M. Farinas-Sabogal
Lilliana M. Farinas-Sabogal is a shareholder in Becker’s Community Association and Business Litigation practice groups. In addition to her experience in assisting community associations in their day-to-day business, management, and the operational aspects of governing their communities, she assists boards of directors, unit owners, and community association managers in analyzing and resolving their often complex contractual and transactional disputes and issues. Ms. Farinas-Sabogal is also one of a select number of attorneys statewide who are Board Certified Specialists in Condominium and Planned Development Law. For more information, email LFarinas@beckerlawyers.com or call (305) 262-4433.