disasterOnce disaster strikes, the opportunity to adequately prepare for a hurricane has passed.  As Florida enters hurricane season, we wish to remind community associations and their members of the importance of having a plan in place to operate the association, make emergency repairs and ensure the safety of the unit owners, guests and tenants immediately following the storm. Once the storm clears and the resulting damage is revealed, an overwhelming sense of urgency to secure the surrounding area, begin making repairs and commence the removal of debris likely arises.

In order to effectively prepare for the continued operation of the association, including the urgent actions that will likely need to be taken in the aftermath of a hurricane, it is imperative that an association and its members are aware of the options available under Florida law for doing so.  To take the necessary post-storm actions, Florida law grants both condominium associations and homeowners associations “emergency powers” that may be exercised by the Board of Directors if the association suffers damage as a result of a hurricane or other “event” for which a state of emergency is declared for the geographic area in which the association is located.  For ease of reference, the powers conferred on the Board of Directors in such scenarios are summarized below:

Action Homeowners’ Association Condominium Associations
Disaster Plan A disaster plan may be implemented before or immediately following the event. This may include, among other things, shutting off elevators, electricity, water, sewer, security systems, or air conditions. A disaster plan may be implemented before or immediately following the event. This may include, among other things, shutting off elevators, electricity, water, sewer, security systems, or air conditions.
Entry onto the Property Based upon the advice of professionals the Board may determine any portion of the association property unavailable for entry or occupancy. Based upon the advice of professionals the Board may determine any portion of the association property unavailable for entry or occupancy.
Mitigation of Further Damage May contract for the removal of debris and to prevent or mitigate the spread of fungus, mold and mildew. May dispose of wet drywall, insulation, carpet, cabinetry etc. May contract for the removal of debris and to prevent or mitigate the spread of fungus, mold and mildew. May dispose of wet drywall, insulation, carpet, cabinetry etc.May be done even if unit owner is obligated by the declaration or law to remove/replace fixtures and to remove personal property from unit.

The Board may further contract on behalf of the unit owner(s) for which items the unit owner(s) are otherwise responsible, but which are necessary to prevent further damage to the condominium property. The owners will be responsible for reimbursing the association for the actual cost of the items or services.

Funding Emergency Repairs when Operating Funds are Insufficient The association may borrow money and pledge association assets as collateral without owners’ approval to fund emergency repairs. The association may borrow money and pledge association assets as collateral without owners’ approval to fund emergency repairs.
Special Assessments May be levied without a vote of the owners. May be levied without a vote of the owners.
Board Meetings Board meetings and membership meetings may be conducted if notice provided in as practicable manner as possible. Board meetings and membership meetings may be conducted if notice provided in as practicable manner as possible.
Assistant Officers Assistant officers whom are not directors may be named to accommodate the incapacity or unavailability of the officer.  The same authority as is conferred upon the executive officer whom they are assistants to is conferred on the assistant during the state of emergency. Assistant officers whom are not directors may be named to accommodate the incapacity or unavailability of the officer.  The same authority as is conferred upon the executive officer whom they are assistants to is conferred on the assistant during the state of emergency.
Association Meetings May be canceled or rescheduled. May be canceled or rescheduled.
Principal Office May be relocated or an alternative may be designated. May be relocated or an alternative may be designated.

While the powers granted to the community associations are rather comprehensive, it is important to note that these powers are only conferred upon the Board when two conditions are met: (1) the hurricane caused damage to the association, and (2) a state of emergency was declared in the geographic area in which the association is located.  If either one of those conditions are not met the association is required to operate as it normally would.

However, Florida law does provide associations with another way to implement pre-determined policies and procedures in the event of an emergency from a catastrophic event.  Under section617.0207 Fla. Stat., the Board of Directors of an association may adopt Emergency Bylaws, which unlike the emergency powers discussed above, do not require that the association have suffered damage from a hurricane or other event for which a state of emergency is declared.  Rather, Emergency Bylaws go into effect “if a quorum of the corporation’s directors cannot be assembled because of some catastrophic event.”  The “Emergency Bylaws” remain effective during the emergency and cease to be in effect once the emergency no longer exists. The adoption of Emergency Bylaws permits community associations to decide and adopt procedures governing how the association will operate after a catastrophic event, including the implementation of procedures for calling a meeting of the board of directors, the requirements for a quorum at the meeting and the procedure for designating additional or substitute directors. Florida law also provides associations, their officers and directors a “safe harbor” for actions taken during an emergency as long as their actions are taken in good faith and are consistent with the association’s Emergency Bylaws.  However, officers and directors are not excluded from liability for their willful misconduct.

Essentially, Emergency Bylaws should establish a framework to operate the community during the emergency period.  Florida law provides guidance in this regard, which is similar to the provisions granting emergency powers to associations, summarized above.  For example, an association’s Emergency Bylaws should state the rights and responsibilities of the board of directors to modify the lines of succession to accommodate the incapacity or unavailability of any officer or director and relocate the principal office.  The Association’s Emergency Bylaws should also provide that:

(a) Notice of a meeting of the board of directors need be given only to those directors whom it is practicable to reach and may be given in any practicable manner, including by publication and radio;

(b) One or more officers of the corporation present at a meeting of the board of directors may be deemed to be directors for the meeting, in order of rank and within the same rank in order of seniority, as necessary to achieve a quorum; and

(c) The director or directors in attendance at a meeting, or any greater number affixed by the emergency bylaws, constitute a quorum.

There are many other items we recommend when considering adopting Emergency Bylaws, such as spending authority.  For example, an association can provide in its Emergency Bylaws that the president, or in the absence of the president, the vice-president, and so on down the line of succession, or in the absence of all of the officers, any director or the property manager (if applicable) is authorized to expend those funds necessary to protect the assets of the association and the welfare of its residents, as the case may be, if the time it would take to obtain the approval of two or more officers or directors would exacerbate the risk of significant injury, loss of life, or damage to association property during the catastrophic event.

Finally, since emergency powers, under Chapter 617, Florida Statutes, are not confined to events declared to be a state of emergency – they can apply to other casualties such as fire, flood, sinkholes, collapse and similar events. The various methods explained above and authorized by Florida law enable associations to continue operating and take the lead on a quick and efficient storm clean-up or other to take such other remedial action necessary to respond to a catastrophic event, even where communication between the association members and its board of directors may be difficult.  Taking advantage of the legal authority to plan in advance and adopting Emergency Bylaws will provide both comfort and operational capabilities to both the association and its residents when faced with the uncertainty of the problems that a catastrophe may leave behind. It is recommended that associations discuss the implementation of Emergency Bylaws with your community association attorney to supplement the emergency powers established by Florida law.

by Steve R. Braten, Shareholder and Lauren B. Feffer, Shareholder, Rosenbaum PLLC

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