Wednesday, December 2, 2020


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Q:  A number of the residents in our neighborhood need to maintain a city corridor assembly.  The entire membership is invited, together with the board, however we (the board) merely need to hear.  Is that this nonetheless thought of a board assembly? B.G., Naples

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A:  This a typical however tough query to reply as a result of there’s a authorized reply and a sensible reply.  A board assembly is outlined as any gathering the place a quorum of the board is collectively conducting enterprise.  Which means if three of 5 administrators are enjoying golf and begin speaking concerning the price range, then the membership ought to have been notified with 48 hours’ posted discover that the price range can be mentioned on Saturday morning on the 13th inexperienced.  Likewise, in case your board solely has three administrators, then the board should present 48 hours’ posted discover earlier than any two administrators even decide up the cellphone to name one another and focus on the truth that the panorama upkeep crew failed to point out up for work immediately.

Related to your query, I’ve all the time taken the place that board members are additionally homeowners, and if the members name an off-the-cuff city corridor assembly, the board ought to have the ability to attend with out constituting a quorum supplied they don’t take part within the dialogue, don’t sit collectively, and don’t in any other case attempt to flip the city corridor assembly right into a board assembly. So, legally talking, the administrators ought to have the ability to attend with out the assembly turning right into a board assembly.

The sensible drawback is that these conferences are sometimes not referred to as to bathe the board with praises and the administrators naturally need to defend themselves.  This sometimes signifies that at the very least one of many administrators will say one thing and it seems awfully near a board assembly when the opposite administrators are listening despite the fact that they’re sitting aside.

The easy resolution to the issue is to easily publish a discover upfront.  The discover can present quorum of the board will meet on the date, time and placement of the city corridor assembly, however the discover can even state that no voting will happen and the assembly is for informational functions solely.  This similar resolution could be utilized to workshops, info classes, retreats, and some other gathering of the board that’s not your typical assembly.

Q:  We stay in a condominium that solely has two elevators and the typical age of the residents is over 60.  A few of our homeowners really feel very uncomfortable with contractors and company coming into the constructing as a consequence of COVID-19, whereas others really feel that there shouldn’t be any restrictions on entry to contractors and distributors.  Does the board nonetheless have the authority to manage entry? V.P., Bonita Springs

A:  Sure, this authority nonetheless exists.  As of the date this text is being printed, it’s our opinion that Florida neighborhood associations nonetheless have the authorized authority to train emergency powers.  In a condominium, Florida Statutes Part 718.1265 gives that these powers could also be exercised following the Governor’s declaration of emergency and endure as fairly essential for the board to guard the well being, security and welfare of its residents. To deal with your query particularly, subsection (g) of the statute gives that the board has the authority to “decide any portion of the condominium property unavailable for entry or occupancy by unit homeowners, relations, tenants, company, brokers, or invitees to guard the well being, security, or welfare of such individuals.”

The catch, nonetheless, is that the above authority in subsection (g) can also be triggered “upon recommendation of emergency administration officers or upon the recommendation of licensed professionals retained by the board.” This language is sensible when you think about that the intent of the statute was to supply emergency powers in response to a hurricane occasion or severe property injury, however it’s tough to use this commonplace to communicable illnesses. 

Our opinion is that, relying in your particular circumstances, this emergency energy permits the board to find out that all the constructing, the elevators, or different components of the condominium are inaccessible to sure classifications of entrants. Some condominiums nonetheless make use of a no visitor coverage, whereas others have an open-door coverage. Some condominiums have halted all development for homeowners and the affiliation, whereas others are sending contractors into every unit to switch home windows or different scheduled development work. In the event you stay in a mid or high-rise constructing the place the frequent areas are enclosed and there are numerous shared areas and excessive contact areas, notably with many residents who could be categorized as inclined by the Florida Surgeon Common, then the board seemingly has the authority to take motion limiting entry beneath this statute.

The above reply is simply half full, nonetheless, except we additionally focus on whether or not the board should restrict entry to company and distributors.  To this, the reply is not any, there isn’t any obligation absent some native ordinance which prohibits entry to company and maybe non-essential distributors.  We don’t imagine the board has an obligation to stop entry from sure folks and thus the board have to be conscious that assuming such an obligation (to ensure company or sure contractors don’t enter) carries an implied obligation to behave prudently and fairly. Thus, the board mustn’t undertake such a rule after which make quite a few and arbitrary exceptions and supply no mechanism to implement the restriction.  If the board fails to fairly implement its personal restriction, there’s a risk an proprietor will declare the affiliation failed to guard him/her and he/she contracted the virus because of the board’s failure to implement its personal rule. 

In abstract, sure, the board nonetheless has the authority to limit entry. We have no idea how lengthy this authority exists, however we imagine it nonetheless exists immediately. Earlier than adopting such a restriction, nonetheless, the board ought to seek the advice of with its counsel to debate the potential legal responsibility points, availability of any insurance coverage, the indemnification provisions of your governing paperwork, and the affiliation’s infrastructure to implement such a restriction.

Q:  We had just a few additional bills due to COVID-19 however we did save so much on upkeep bills whereas the facilities have been closed.  We need to go this financial savings on to the homeowners.  How will we do that? J.R., Naples

A:  In most communities, the board of administrators is accountable to suggest and undertake a price range for every fiscal 12 months. That price range, nonetheless, is usually not set in stone for all the fiscal 12 months and could be amended mid-year. So, if you wish to present some monetary reduction to homeowners, you may accomplish this by reopening the 2020 price range and lowering the general price range.  The result’s that the fourth quarter evaluation will likely be decrease than initially assessed. Alternatively, you could possibly preserve 2020 the identical and go the financial savings on to the 2021 fiscal 12 months price range and rollover the 2020 surplus (from the lowered bills) within the 2021 price range.

The board, in fact, has no obligation to amend the price range and it’s tough to say that these financial savings will likely be utterly appreciated as a result of the way forward for the virus is clearly unknown and you could possibly have further and unexpected bills.  That being mentioned, if the board needs to amend the 2020 price range, it might accomplish that by offering at the very least 14 days’ mailed and posted discover and adopting a brand new price range for 2020 to affect the fourth quarter evaluation, or it might wait till 2021.  

Attorneys at Goede, Adamczyk, DeBoest & Cross reply to questions on Florida neighborhood affiliation legislation. With workplaces in Naples, Fort Myers, Coral Gables and Delray Seaside, the agency represents neighborhood associations all through Florida and focuses on condominium and home-owner affiliation legislation, actual property legislation, litigation, property planning and enterprise legislation.

Legal professional John C. Goede is a shareholder within the legislation agency of Goede, Adamczyk, DeBoest & Cross. Go to the web site at www.gadclaw.com or ask questions on your points for future columns by sending an inquiry to: information@gadclaw.com

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