On March 9, 2020, Governor Ron DeSantis declared a state of emergency in Florida by Executive Order 20-52. The Governor then extended the state of emergency through July 7, 202 by Executive Order 20-114.
Under Florida Law, condominium associations and homeowner associations became vested with emergency powers once the declaration was made. See Section 718.1265 Fla. Stat. and Section 720.316 Fla. Stat. However, these statutes contemplated natural disasters such as hurricanes rather than the unique problems encountered in coping with the COVID-19 pandemic.
The State of Florida Department of Business and Professional Regulation houses the Division of Florida Condominiums, Timeshares, and Mobile Homes with responsibility for regulating condominiums and homeowner associations. To assist associations in dealing with COVID-19, on March 27, 2020, the Secretary of the Department of Business and Professional Regulation issued Emergency Order 2020-04.
In this order, DBPR ruled that the emergency powers for condominiums and homeowner associations were not limited to “response to damage caused by an event” which is one of the conditions set forth in Section 718.1265 Fla. Stat. and Section 720.316. This interpretation allowed associations to utilize emergency powers to address COVID-19 even though there the nature of the emergency did not cause “damage” akin to storm damage as contemplated by the statutes. The order also clarified the statutes to provide that “emergency management officials” included “public health officials.” This clarification recognized that institutions such as the Centers for Disease Control were key to addressing the response, and allowed associations to properly follow the advice of the CDC and similar organizations in determining whether to limit access and use of portions of the condominium or association property.
Although Florida remains under a state of emergency, today the Secretary of the Department of Business and Professional Regulation issued Emergency Order 2020-06 terminates the provisions of 2020-04 applicable to condominium and homeowner associations effective as of June 1, 2020.
Accordingly, association boards must now reevaluate how they may legally respond to COVID-19. Clearly the concerns regarding the pandemic will continue beyond June 1, and the state of emergency runs through July 7. Whether the associations still have the authority to properly address COVID-19 is a matter of concern.
Even experienced association lawyers differ in their opinions as to what actions can now be taken by a board to protect their residents and minimize liability. What is clear, is that boards need to meet, confer with management and legal counsel and determine, using their business judgment, how best to proceed under the circumstances. Ansbacher Law is available to answer your questions and to help guide associations through these difficult decisions.
