By Attorney Richard D. DeBoest
Q: What are your latest recommendations to community associations regarding Covid-19 vaccinations and the so called “vaccination passport”? Can an association mandate that in order to use the common facilities the person must show proof of vaccination? Should we be fully reopening our common facilities and if so does this expose our association to liability if someone contracts Covid-19 at the facility?
A: Although many community associations have reopened their amenities, some are still wrestling with the issue. One recent development may serve to encourage more communities to open up. On March 29, 2021, Governor DeSantis signed SB 72 (F.S. 768.38) into law, granting liability protection to business entities, including community associations, from lawsuits related to COVID-19 exposure if such entities made a good faith effort to substantially comply with all government issued health standards and guidance. As such, in addition to other precautions, associations re-opening their amenities should make a good faith effort to follow all federal, state, and local health guidelines regarding COVID-19.
As many people have already been vaccinated, the next big question is whether community associations can require proof of vaccination for residents to use the amenities. Recently the Governor signed an Executive Order which is effect now and then law (F.S. 381.00316) which takes effect on July 1 that prohibits a business from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations. There is some debate wither or not community associations are businesses and if so are resident considered patrons or customers. Until this is fully resolved I believe requiring proof of vaccination is not recommended for two primary reasons: 1. The association is arguably a business and therefore requiring proof of vaccination violates the Executive Order and the law; and 2. Distinguishing between residents that have been vaccinated and those that have not raises potential claims of illegal discrimination under the Fair Housing Act based on religion and handicap status.
Q: My condominium board is debating the 8 year continuous service term limit law and whether it runs from the date of the law (July 1, 2018) forward or does service prior to that date also count? I know there was a ruling by the Division of Condominiums that the law was retroactive and that service prior to July 1, 2018 counted in the 8 year calculation. Can you clear this up for me?
A: No doubt your Board is confused by this as we all have been since the law went into effect. At first everyone seemed to more or less agree that the law was prospective only from July 1, 2018 and so the 8 year clock started on that date. The Division of Condominiums verbally indicated that they agreed with this interpretation. Then, the Division issued a written Declaratory Statement opining that the law was retroactive reversing its prior verbal position. Subsequent to the Declaratory Statement the Division reversed course again and said in future cases it would not follow its Declaratory Statement and would apply the law prospectively from July 1, 2018 meaning the 8 years ran from that date forward. Now, as of July 1 2021 the Condominium Act has been amended to dispositively once and for all provide that the 8-year continuous years of service runs from on or after service beginning as of July 1, 2018. So no condominium Director has to even worry about being term limited out until 2026 and if the read the law carefully it can be easily avoided by stepping off the Board before they complete 8 “continuous” years of service and then return to the Board. Keep in mind this law does not affect Cooperatives or HOAs.
Q: Our condominium association would like to consider installing an electric vehicle charging station as a common amenity for any resident to use on a first come first serve basis. Can we do this and pay for the installation as a common expense?
A: Yes this can be done. Initially under the current condominium law this would be a material alteration of the common elements and would, depending on your governing documents, require a vote of the Unit Owners to approve the material alteration. However, as of July 1, 2021 a new law goes into effect that will allow you to avoid the need for a Unit Owner vote. The new law is found in F.S. 718.113(9) which was part of the large omnibus community association law bill recently approved by the Florida Legislature. See Senate Bill 630. The new law provides that the Board of an association may make available, install, or operate an electric vehicle charging station or a natural gas fuel station upon the common elements or association property and establish the charges or the manner of payments for the unit owners, residents, or guests who use the electric vehicle charging station or natural gas fuel station. For the purposes of this section, the installation, repair, or maintenance of an electric vehicle charging station or natural gas fuel station under this subsection does not constitute a material alteration or substantial addition to the common elements or association property.
Q: Do amendments to Board adopted Rules in an HOA have to be recorded in the public records?
A: Presently yes but as of July 1, 2021 the answer is no. The new law is found in F.S. 720.301(8)(c) which was part of the large omnibus community association law bill recently approved by the Florida Legislature. See Senate Bill 630. The new law provides that Board adopted rules and regulations have been removed from the definition of “Governing Documents” which means that amendments to the Rules no longer have to be recorded in the public records. The Governing Documents are now only the Declaration, the Articles of Incorporation and the Bylaws. However, your particular governing documents might require that the Rules must be recorded and if so you would have to follow your governing documents. Also, even if you are not required to record Board adopted Rules you could do so if the Board thought this was a good idea.