Q: Our residents are very concerned about the Coronavirus. Some owners want the gym open and others are insisting that the board close the gym. Some owners want the association to deny entry to anyone with a fever. We also have our annual meeting next week and want to avoid hundreds of people but also want to hold the election. What should we do?
B.B., Marco Island
A: This has been a constant discussion in our office and around the world. As I write this article, it is very likely that the situation will have changed and thus I recommend that you consult your attorney as you work through the next few weeks and months.
Broadly, note that Governor DeSantis has declared a state of emergency and many attorneys are supporting the use of the emergency powers statutes in Chapters 718 and 720 to support broadened board authority during this time. Each community will approach this from a different perspective. Some will support full social distancing, others will support more stringent cleaning regimes, others will support a business as usual approach. Some homeowners associations have restaurants and bars that are subject to the Governor’s order on occupancy and serving alcohol, and others will voluntarily shut down operations.
We are working with clients to implement policies and procedures to continue operating its standard functions. Beyond that, I believe it is important that the board avoid actions or communications which create the impression that the board is responsible or obligated to maintain and/or protect physical health. As a community association charged with operating a residential community and maintaining property, neither the board nor its managers (in most cases) are designed, trained or built to guarantee physical health. If you create the impression that you are responsible to keep sick people out, then the board may be assuming a duty that is not in the association’s purview. You will most likely not do this perfectly and assume unnecessary liability that may not be covered under your insurance policies.
Because of these limitations, we recommend reiterating to the owners that they must contact their individual health care providers if they have any questions or concerns over their own health or their involvement in any community activity or use of common areas. The association can take precautions such as closing or limiting facilities, implementing additional cleaning protocols, making hand sanitizer available, providing signs and instructions to wash hands, but the owners should understand that the association cannot serve as a health care provider or guarantor.
More specifically to your question, we are seeing many communities limit or close amenity access and community gatherings. By the time this article is printed, it may be mandatory. The board should consider whether it wants to follow CDC recommendations concerning large group gatherings and use of common facilities. The board has the authority to limit access, limit hours, or close community facilities during this time.
Finally, we are recommending that annual meetings either be rescheduled or limited to necessary personnel, which will typically include the board, management, and candidates in the event of an election. If you do not have any business to conduct or an election, you could also cancel the meeting under emergency powers. If you have limited attendance, you could also consider providing a conference telephone line for owners to attend by telephone, live stream or video tape the meeting for real time viewing or future viewing or use a virtual meeting platform. If you have an election with limited attendance, we also recommend keeping all election materials in a secure location to ensure a proper recount is possible down the road.
Q: I was just elected to the board and it is my understanding that all new directors must be certified, but I do not want to attend a large group gathering for now due to the virus. Is there another option?
B.C., Naples
A: Yes, in lieu of taking a certification class, you can sign a form indicating that you have read the governing documents and will work to uphold the documents and your fiduciary duty in lieu of the class.
The class itself can be a great opportunity and I understand your concerns. Our own office has been impacted as we have postponed a number of our upcoming live board certification classes intended to certify newly elected directors. We have added a webinar platform and will be providing our first web-based board certification on Thursday, March 26, 2020 at 9:00 a.m. You can register through www.gadclaw.com or by email at info@gadclaw.com for more information. We hope to be able to answer questions concerning the class material and coronavirus immediately after the webinar and will have weekly webinars for the near future to ensure newly elected directors have an opportunity for certification.
Q: I recognize that it is 2020 and that Hurricane Irma was more than two years ago, but we continue to experience roof leaks and owners have been complaining about minor window leaks. We believe it may be from Hurricane Irma, but the insurance carrier denied our claim a while back. Is it too late to try again?
K.D., Naples
A: There are deadlines you should be aware of if the association’s property suffered damage as a result of Hurricane Irma, which struck the area on or about September 10, 2017. If the association’s property insurance claim as a result of Hurricane Irma: (1) was determined to be below the deductible by the insurance company; (2) was underpaid by the insurance company; (3) was denied by the insurance company; or (4) is still pending without a final resolution, and the association does not agree with the insurance company’s position, it is important to note that the association can still take action, and time is running out.
Broadly, insureds/policyholders must provide timely and proper notice of claims to insurance companies and this must be done in accordance with the insurance policy, and Florida Statutes § 627.70132. Although the deadline to provide notice (pursuant to Florida Statutes § 627.70132) is no later than September 10, 2020, in an abundance of caution, the notice should be made as soon as possible and with as much detail as possible. Because it takes time to obtain estimates and/or reports from experts to support claims, it is important to take action now. Thus, the deadline to report a claim is three years, but it could take weeks to prepare a claim for filing. Therefore, we recommend you act quickly if you believe you are entitled to coverage.
We have received numerous inquiries into this issue as some condominiums were approved for insurance coverage while others, even immediately adjacent condominium buildings, were denied coverage. Our litigation department is still receiving and pursuing new claims from condominium and homeowners’ associations, so it is not too late. We do recommend, however, that you work with a licensed Florida attorney familiar with insurance law because there are numerous statutes and policy provisions which govern the rights of the parties.
Visit our Condo/HOA Blog for more of our Q&A articles.
Steven J. Adamczyk, Esq., is a shareholder of the Law firm Goede, DeBoest & Cross, PLLC. Visit our website www.gadclaw.com, or to ask questions about your issues for future columns, send your inquiry to: info@gadclaw.com. 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, DeBoest & Cross, PLLC 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.