Realtor® Attorney Joint Committee

Community Association Emergency Powers

By: Douglas G. Christy, Attorney at Law, Becker & Poliakoff, P.A. A little known change in the law from 2008 may be having a big impact on purchases and leasing of residential properties across Florida in response to concerns about COVID-19 and Realtors® are quickly learning, if they haven’t already learned, how it may be impacting their business and clients.

STATE OF EMERGENCY STATUTES

On July 1, 2008, Sections 718.1265, 719.128, and 720.316, Florida Statutes became effective and provided condominium, cooperative and homeowners’ associations (commonly referred to as community associations), respectively, with emergency powers that might not otherwise exist in normal times or circumstances. While these statutes were drafted in response to the damages and destruction that Florida and its planned residential communities encountered during the unusually-active hurricane seasons in 2004 and 2005, these statutes can also be applied at any time a State of Emergency is declared at the State level for affected areas. In fact, many community associations are actively relying on these statutes in response to concerns stemming from COVID-19 and, in doing so, may directly impact how owners in these communities are able to proceed with activities in relation to efforts to sell, buy or lease property in these communities.

EMERGENCY POWERS

Specifically, the foregoing statutes provide community associations with powers that relate to the ways that the associations may operate internally, or how the property is overseen or managed by such associations may be restricted. Among the powers that may most directly impact the ability of owners’ efforts to transact properties in these communities is the power to determine that portions of the property in the community may be unavailable for entry or occupancy by owners, family members, tenants, guests, agents and invitees. The use of these emergency powers may impact planned transactions of property in these communities in any number of ways, including limiting the types of persons who may have access to the property or eliminating certain types of uses of the property, such as leasing, in response to the damages faced by the community. It also should be noted that the emergency powers for community associations can extend to the “time reasonably necessary to protect the health, safety, and welfare of the association and the […] owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs” so that the need to account for the same does not necessarily end when the declared state of emergency ends.

STAYING MINDFUL

Realtors® and their clients need to be mindful of any existing, or potential, use of emergency powers by a community association for any property that they wish to sell, buy, or lease, and should inquire with appropriate community associations about existing reliance on, and account for, these emergency powers in how they may impact plans to sell, buy or lease property. Realtors® and their clients should also consider working with an attorney to ensure that these emergency powers and how they are being, or may be, used are accounted for in any contracts or other written documentation related to their plans. •

Douglas G. Christy is an attorney in the Sarasota and Tampa offices of Becker & Poliakoff, P.A. His practice focuses on the representation of residential and commercial property owners’ associations in transactional and litigation matters and he is a Board Certified Specialist in Condominium and Planned Development Law by The Florida Bar. This article is provided for general informational purposes and may not be considered to be legal advice.

Soar 2020 RASM CONFERENCE &EXPO SEPTEMBER 23 / 9AM - 3PM BRADENTON AREA CONVENTION CENTER*

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