By Attorney Richard D. DeBoest
Q: Our governing documents allow pets but prohibit pit bulls. A person has submitted an application to lease a unit and indicated that he has a pit bull but claims it is an emotional support animal. Can we deny the lease application on the basis that the pit bull violates our rules?
P.T., Naples
A: If the person has provided sufficient documentation supporting the need for an emotional support animal under the Fair Housing Act the association cannot deny the application. Breed and weight restrictions in governing documents applicable to pets do not apply to emotional support animals because legally, an emotional support animal is not a pet under the Fair Housing Act. The necessary documentation would be a letter from a treating health care professional (not necessarily a doctor) that opines that the person has a disability that substantially affects one or more major life activities and that the animal will ameliorate the condition caused by the disability. However, pursuant to a new Florida law, if the health care practitioner is not practicing in Florida, the out-of-state practitioner must indicate that they have provided care or services to the person on at least one prior occasion before issuing the opinion.
Q: I am the president of the association and want to remove a person from a committee that I think is not properly fulfilling the role. Can I do this without a vote of the whole board? If not, is it allowable to include this in a consent agenda where all motions are listed, moved and voted on in bulk with one vote of the board? I want to cause the person being removed from the committee as little public embarrassment as possible.
S.S., Marco Island
A: First you will need to check your governing documents, typically the Bylaws, and determine what they provide with regard to the authority to create a committee and to remove persons from a committee. Sometimes, the president has this authority. More often, the Bylaws provide that the board establishes the committee. Moreover, Chapter 617, Florida Statutes provides that all committees serve at the pleasure of the board, therefore any committee member can be removed by the board. Assuming the governing documents do not authorize the president to remove the committee members, then it must be done by board action at a meeting which means a motion, second and vote.
So, you may want to tell the person that a motion to remove them from the committee will be made and voted on at the board meeting unless the person would like to resign now to avoid the embarrassment. If they agree to resign, they need to resign in writing.
Using a consent agenda is an interesting idea. Local governments use them all the time to move a bundle of motions and board decisions in bulk by a single vote of the board. So, I think that if someone makes a motion to approve the consent agenda, it is seconded and then voted on by the board and the consent agenda includes an item that said, “Remove John Doe from the XYZ committee,” it would be valid as long as the consent agenda is attached to the formal minutes. I think that would be legal.
Q: The board is proposing an amendment to our Declaration creating a disclaimer of liability for COVID-19 and possible future pandemics. Is this legal and is it recommended?
C.P., Naples
A: In my opinion it is legal and is recommended but as with all disclaimers of liability it is not a shield against the association being found liable for failing to take reasonable precautions to protect against foreseeable harm or injury. So, a disclaimer of liability while helpful is not and should not be relied on by the board to allow it to ignore open and obvious threats or dangerous conditions and take reasonable precautions to avoid them. The Condominium and Cooperative emergency powers Statutes (718.1265(1)(h), and 719.128(1)(i)) already provide immunity from liability for the association if a person should get physically injured on the property after the board has declared the Condominium or Cooperative to be evacuated. There is no similar provision for homeowners’ associations (HOAs).
As a member of the Florida Bar Condominium Committee COVID-19 legislative task force, we have recommended extending this present board immunity to pandemics when a person refuses to wear a mask or uses an amenity that has been declared closed by the board. However, at this stage this recommendation has received a lot of negative pushback for various reasons. Moreover, the insurance industry has indicated that COVID-19 claims will not be covered by insurance per the broad disease and health exclusions found in most policies. In the future, such claims will no doubt be expressly excluded in insurance policies. As such, an association should do what it can to reduce its liability and exposure to pandemic claims. Therefore, I do recommend including a disclaimer of liability in the Declaration, at least as a buffer against claims for which, as mentioned above, the association will not likely be able to insure against.
Q: Our HOA annual meeting is coming up in January. However, we are very confident that we will not have a quorum. The election of directors is uncontested and the members are not voting on any matters. Do we still need to hold our annual meeting?
M.D., Bonita Springs
A: Yes, you must hold an annual meeting per the 720.306(2) Florida Statutes which provides that “the association shall hold a meeting of its members annually…” The law does not dictate what happens if there is no quorum, but it is my opinion you must attempt to reconvene the meeting at least one more time to try to obtain a quorum. As for the election of directors, the HOA law provides that even without a quorum, if the election is uncontested the candidates take their seats effective the day of the meeting. In a condominium and a cooperative, the law provides the same thing if the election is uncontested. In a condominium and a cooperative, if the election is contested but at least 20 percent of the members have voted in the election, you still hold the election at the meeting, but cannot conduct any other business. In an HOA if the election is contested and you don’t have a quorum, there is no 20 percent exception, so the existing directors remain on the board. The annual meeting needs to be reconvened until you get a quorum and then hold the contested election.