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.