Condo & HOA Law, Treasure Coast Palm

Treasure Coast Palm Q&A | May 3, 2020

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: Our Board has implemented a requirement that anyone entering the condominium building must provide a temperature reading. The intent is to mitigate the spread of the COVID-19 virus and a clear symptom has been a fever. We want to keep our residents safe. Is this legal?

E.D., Stuart

A: There are two issues here worth discussion. First, is it legal? Second, is it appropriate? To answer the first question, I am aware of a few condominiums implementing such a program. They are doing so under the Florida emergency powers statutes providing that a condominium can implement disaster plans in the event of an emergency and take action to mitigate further damage. Even if the Board’s policy were stretching the intent of the emergency powers granted to condominium associations, some are doing it because they believe it is the best way to keep the owners safe and healthy.

The second question is worth a longer discussion. It is important for the Board to remember that despite your best intentions to maintain the safety and health of the building, the Board is neither equipped nor trained to serve as a medical organization. Your management staff likely has no medical training in this context. And so, if you implement this program and publicize that the Board is taking action to keep sick people out of the building, the reality is that you are most likely going to err at some point. The representation and implementation carry an obligation to act prudently and reasonably. If it turns out that someone gets in the building with a fever, the Board now has exposure for breaching an assumed duty to the residents based on this policy and your representations to the owners.

Thus, most of our clients have discussed whether the Association should take any action in response to the virus or whether it should be business as usual. There are obviously varying positions on the role of the condominium association during this epidemic and there is no textbook answer. We do, however, recommend that you discuss any proposed plans with your management team and legal counsel to make sure the Board is able to consider all aspects of the decision.

Q: We have closed our pool due to COVID-19 and relevant government orders. One owner refuses to follow the closure and uses the pool every day, insisting that he is entitled to use the pool because he pays assessments to use the pool. What can we do?

M.W., Port St. Lucie

A: Unfortunately, this is an exceptionally common problem right now. There is no difference between closing the pool by Board rule at 2:00 PM and closing the billiards room for play at 2:00 AM. We believe the Board has the authority under the emergency powers statute as well as most governing documents to establish rules and usage of common areas and amenities. As a result, you would notify the owner in writing and we are finding that most local Sheriffs’ offices are unable to respond to these complaints for various reasons and it is understandable given the circumstances.

The association has the ability to enforce rule violations with fines and suspensions. One option could be to fine the offending owner $100 per day of use or suspend the owner’s right to use the pool following the closure. The Board could consider implementing a suspension of 1 week (or more) of suspension for each day of use during this closure. The Board would have to follow the procedural requirements to levy a fine or suspension in the governing documents and Florida Statutes, but we believe this is a viable option to compel adherence to the closure.

And no, in almost no circumstance does the owner have the right to use an amenity in violations of the Board’s restrictions just because the owner pays assessments.

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John C. Goede Esq. is co-founder and shareholder of the Law Firm of 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: question@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, 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.