Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: Many communities are reacting differently to the COVID-19 virus. Some golf courses are open, some are closed. Some tennis courts are open, some are closed. Some communities are barring vendors from entering the community. What is the board’s responsibility here?
— AB, Stuart
A: First and foremost, this is a very individual question for each community and you need to have a conversation with your legal counsel to discuss how your community can and should respond. The emergency powers in the Florida Statutes afforded to community associations can be used in various ways and provide that the association can, “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.” This is broad authority and some communities are using this authority to prohibit open houses, or close the pool, or close the clubhouse, or limit non-emergency vendors from accessing the community.
The bigger picture is that the board should be aware that when it takes on a responsibility, it takes on a duty and the board must carry out that duty with reasonable care.
For example, if the community has a guard house and advertises to residents that the association will keep you safe, the board then has a duty to make sure the guard house is following post orders and taking reasonable safety measures. Likewise, the desire to keep the community safe from COVID-19 is completely understandable and has merit, but remember that the condominium association is charged with managing the operation of a residential or mixed-use condominium association and the maintenance of real property. The board is neither equipped nor trained to serve as a medical organization and the board really can’t provide any guarantees that it will keep residents safe.
Thus, we recommend you work with counsel to determine the appropriate level of communication and activities for your community. This may involve warning owners of known COVID-19 cases, notifying owners with confirmed cases of their access to common areas, closing amenities, prohibiting certain vendors from accessing the property and also following any County or State emergency orders impacting the operation of your community.
Q: Our irrigation contractor has been missing deadlines and we are receiving complaints over broken sprinkler heads that have not been fixed. We have a proposal for another vendor. What does it take to change vendors?
A: First, I am answering this question without considering the impact of COVID-19 on performance or impossibility. In other words, this answer assumes that you are in a normal work environment and the vendor is performing poorly.
There is a common misconception that any contract can be terminated with or without cause. This is not correct, and the general rule is that you can only terminate a contract with cause unless the contract provides a different termination procedure. So, the first recommendation is to have the contract reviewed by a licensed Florida attorney, who can advise you whether the agreement can be terminated early, and if so, how do you notify the vendor of termination.
If the contract cannot be terminated early, you need to know whether there are any special requirements to terminate early for cause. For example, I have seen many contracts where you can’t terminate (even for cause) unless and until you jump through a bunch of procedure hoops which make it prohibitive to terminate. If you need cause to terminate, obviously you need to document all of the shortcomings and contract breaches.
The second recommendation is to have your legal counsel review these agreements during negotiations. If termination with or without cause is a critical item for your community, you would want to make sure it is in the agreement right up front.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit our website at www.gadclaw.com, or to ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.