Thursday, October 8, 2009

Emergency powers for boards

Two years ago the Florida Legislature wisely recognized that volunteer boards could benefit from some guidance and the relaxing of certain procedures in order to better handle a storm situation. Unfortunately, those "emergency powers" were only conferred on condominium boards and not HOA boards but nevertheless they do provide some flexibility for condominium boards to maneuver during a difficult time.

Pursuant to Section 718.1265 of the Condominium Act, a board may undertake the following in response to damage caused by an event for which a state of emergency has been declared by the Governor:

-Conduct board and membership meetings with notice given as practicable and not as statutorily prescribed under ordinary circumstances;

-Cancel and reschedule any association meeting;

-Name assistant officers who are not directors and such assistant officers will have the same authority as the executive officers during the state of emergency in order to replace missing executive officers;

-Relocate the association's principal office or designate alternative principal offices;

-Enter into agreements with local counties and municipalities for debris removal;

-Implement a disaster plan before or immediately following the event which may include shutting down or off elevators, electricity, water, sewer or security systems or air conditioners;

-Declare the property unavailable for entry or occupancy based upon advice of emergency management officials or licensed professionals retained by the board;

-Require the evacuation of the condominium property in the event of a mandatory evacuation order. If a unit owner or occupant fails or refuses to evacuate the condominium property despite the board's evacuation order, he or she does so without possible recourse against the association for any injury or loss to persons or property as a result;

-Enter into contracts to mitigate further damage to the property including removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property and inside the units;

-Contract on behalf of the owners for items or services for which the owners are otherwise individually responsible but which are necessary to prevent further damage to the condominium property;

-Levy necessary special assessments without a vote of the owners even if the documents ordinarily require membership approval for special assessments; and

-Borrow money and pledge association assets as collateral to fund emergency repairs without unit owner approval.

These emergency board powers are limited to a "time reasonably necessary to protect the health, safety and welfare of the association and the unit owners and the unit owners' family members, guests, agents or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs." These powers should not be used outside these statutory guidelines.

It is interesting to note that there was a push last year to remove these emergency powers when they have yet to even be invoked since we have been fortunate in avoiding hurricanes the last few years. Do some boards overstep their boundaries? Yes. Do some use any excuse that something is an "emergency" to do what they want? Certainly. But those boards do not reflect the majority who simply want the tools they need to protect their communities and to fulfill their fiduciary obligations.

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