By Attorney John C. Goede
Q. My condominium’s Board of Directors recently started discussing hurricane preparations and steps the Association would take if a hurricane were to hit our area. The Board said they would shut down both the elevators and a/c 24 hours before the hurricane hits. Does the Board have the right to shut off the elevators and a/c? What happens to the residents who choose to stay? – W.H., Naples
A. Yes, your condominium association likely can turn off the building’s elevators and air conditioning units prior to and following a hurricane affecting our area. Section 718.1265 of the Condominium Statute, authorizes condominium associations to exercise emergency powers in response to damage or injury caused by or anticipated in connection with an emergency assuming that the emergency powers are not otherwise specifically prohibited under the governing documents of the association. Under the Emergency Powers provision, a condominium may implement a disaster plan before, during, or following the emergency event which may include shutting off elevators, electricity, water, sewer, security systems, and air conditioners. Many condominium associations suspend the operation and use of these items in an effort to protect these systems which may become damaged or compromised during an emergency event. Additionally, directors are often concerned with the personal injury aspect of these items used during an emergency situation and take action to prevent these injuries from occurring or residents getting stuck in an elevator. Residents who decide to stay in their unit during the disaster event should be prepared to go without these services in advance of the disaster and for the next few days after the disaster. The Condominium Statute also authorizes a condominium association to require the evacuation of the condominium property in the event of a mandatory evacuation order being issued for the association’s local area. If residents refuse to leave, the association becomes immune from liability or injury to persons or property that may arise from the resident’s failure or refusal to evacuate. Additionally, Florida law permits a condominium association’s Board of Directors, with the advice of licensed professionals, emergency management officials or public health officials to determine any portion of the condominium property, including units, unavailable for entry or occupancy by unit owners, their family, tenants and guests to protect their health, safety, or welfare. The restriction of condominium property can extend well beyond the disaster as remediation efforts are often delayed due to labor and material shortages immediately following a disaster. As the implications of implementing a disaster plan can have a substantial impact on the association’s residents, condominium boards that are considering adopting a disaster plan should consult with their association’s attorney to ensure they adopt a plan that works for their community and complies with both the governing documents and Florida law. Additionally, I recommend all condominium associations that are considering the suspension of services during an emergency event communicate this strategy to residents so they are aware of how the association will respond to the event and determine what steps may be best for them and their family.
Q. I serve on the Board of Directors of a homeowners association. I and several other Directors were just elected and ran on the platform of starting to enforce the rules. One resident is telling us we cannot enforce the rules because it has been many years since the previous Boards tried. Can we enforce the association’s rules or are we stuck now with unenforceable rules? – J.S., Fort Myers
A. While the homeowner raises a valid concern, the Association may start to enforce its rules and regulations but will need to take several steps before enforcement is safe for the Association to pursue. Due to the years of lack of enforcement, any enforcement action the Association attempts now could be subject to challenge under the legal theory of waiver. Waiver in this context means that the Association has waived its right to enforce its rules and regulations due to its failure to enforce these restrictions for such a long time. Courts generally find waiver arguments that are properly presented and supported by evidence by homeowners to be a valid defense to an association’s enforcement efforts as the homeowner has essentially relied upon the association’s prior inaction to govern their current actions.
That being said, associations that fail to enforce their rules or governing documents are not without options. In 1985, the court decided Chattel Shipping & Investment, Inc., v. Brickell Place Condominium Association, Inc., which delt with the issue of enforcing previously unenforced provisions of the association’s governing documents. The court held that it would be unreasonable for an association to be prevented from enforcing its covenants and rules forever simply because there was a period of time where the association failed to take enforcement action. The association could begin enforcing its covenants and rules after providing specific notice to the owners that it would begin enforcing previously unenforced restrictions and any subsequent violation would not be permitted.
Since Chattel Shipping, associations have access to what we commonly refer to as “new sheriff in town” resolutions. By adopting a resolution that states the association will begin enforcing previously unenforced rules at a properly noticed Board meeting and recording the resolution in the County record, the association may begin prospectively enforcing its governing documents. I strongly suggest that your Association contact its legal counsel to review the history of your Association’s enforcement actions, and prepare a resolution for the Board of Directors to adopt and record in the County’s Public Records. The Association will need to provide notice to all the members and should allow a reasonable opportunity to cure nonconforming behavior prior to initiating enforcement action, like levying fines or suspensions. Additionally, the issue of improvements to real property that were made during the period of nonenforcement that are in violation of governing documents or rules. These issues should be discussed with your attorney as enforcement action may not be appropriate and the Association may decide to “grandfather” the violation until the improvement needs to be repaired or replaced.