Condominiums cannot impose restrictions that directly conflict with emergency orders issued by state and local government agencies (government orders) but can enforce their own governing documents in accordance with applicable law.
With this week’s news
of the skyrocketing increase in COVID-19 cases occurring
throughout Florida (the emergency), many condominium
associations, condominium unit owners and outside service
providers, including real estate brokers, may be confused
about a condominium association’s authority to restrict
access to the common areas and condominium units located
within the condominium property.
Condominiums cannot impose restrictions that directly conflict with emergency orders issued by state and local government agencies (government orders) but can enforce their own governing documents in accordance with applicable law, (including the Condominium Statute, Florida Statutes Chapter 718). This can include rules that are more stringent than required by government orders. Florida Statutes Section 718.1265(g) provides condominium associations with broad emergency powers, including the power to prevent access to specific parts of the common elements such as swimming pools and gyms. While these provisions originally appeared applicable only to emergencies resulting in physical damage, such as hurricanes, the authors believe that, when read in conjunction with the various recent government orders, COVID constitutes an emergency situation that affords condominium associations the right to use these emergency powers to regulate use of the condominium property during the pendency of the emergency. Here are some common questions and answers:
Can a condominium association entirely prevent access to the condominium property by people who are not actual owners/residents of the condominium?
No. Condominiums cannot entirely ban entry onto the condominium property by nonresidents. Most declarations provide that unit owners have an absolute right of passage to their units, for themselves and their invitees and there appears to be no government order to the contrary.
If a condominium association cannot prevent access entirely, can the condominium association restrict entry to the condominium property and regulate behavior within the condominium property?
Yes. Condominium associations absolutely can regulate entry into the condominium property and regulate use of the common areas within the condominium. Condominium associations may rely on government orders to insist upon social distancing and face coverings whenever anyone, unit owner or otherwise, enters into the common elements of the condominium. This would include hallways, elevators, garages and lobbies, as well as gyms and swimming pools (which are covered by additional stricter government orders).
Most condominium governing documents already vest powers in the board of directors to regulate use of all common elements. Unit owners have a right to allow guests and other nonresidents such as real estate brokers, housekeepers and workers to enter onto the condominium property to provide services, however, the entry by such third parties should be strictly regulated by the condominium. Condominium associations reasonably can place a time limit on visits by real estate agents and other outside service providers, require them to observe social distancing and face-covering rules and require them to be accompanied directly from the entrance to the unit that is their destination. In light of the emergency, Condominium boards can and should also enact emergency rules in line with government requirements. The condominium association has the right to restrict entry by any person who refuses to comply with these rules or any government order and to ask any person violating the rules after entry to leave.
Can a condominium association hold its annual owners’ meeting entirely virtually?
Florida Statutes Section 617.0721(3) allows not-for-profit corporations to hold virtual meetings. Since no direct prohibition against this exists in the condominium statute, and given the uncertainty caused by the emergency, Condominium boards should again err on the side of caution and hold such meetings by Zoom or other videoconferencing software to avoid the possibility of unit owners from becoming infected. Until there is a court case specifically prohibiting such virtual meetings in light of the emergency, it is a reasonable business decision for boards to do so. Voting for directors must still be done either by voting machine or written ballot, but the lead time required for such elections is the 60-day period provided by the condominium statute, which should be more than sufficient time to plan for it.
No court case has yet found that these emergency powers are not effective in emergencies other than hurricanes and, absent a direct conflict with government orders or a condominium association’s governing documents, boards of directors should err on the side of caution in protecting their unit owners and residents against COVID-19 infection. It’s better to have to defend an election than a wrongful death action.