It’s hard to believe that we have been dealing with COVID for a year and a half now. It’s harder to believe that we will be dealing with it for at least another year and a half. It’s a never-ending nightmare with no end in sight apparently. Who would ever have thought this could happen?
While we are constantly being told about social distancing, wearing masks, getting vaccinated and avoid gatherings, as many of you know it is extremely difficult to mandate and practice these objectives in a condominium setting. Now that the State of Emergency has been lifted (obviously too soon) it is even harder because the Boards of Directors don’t have the emergency powers any longer.
So what do we do now? Are Boards prohibited from making rules that protect the health, welfare and safety of the community in regards to COVID, simply because the emergency powers statute is no longer in play. I say HELL NO.
Florida Statute 718.123 (for condominiums) states the following:
The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities.
Florida Statute 720.304 (for HOAs) states the following:
The entity or entities responsible for the operation of the common areas and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common areas and recreational facilities.
There is no doubt in my mind that at this point in time, an association may continue to impose rules and regulations regarding the common elements that the association previously had in effect during the State of Emergency. At this point in time, I doubt highly that an arbitrator or judge would say that limitations on the number of people in the pool, elevator, clubhouse or exercise room is an unreasonable rule. I can’t imagine requiring masks in the common areas would be considered an unreasonable rule, especially when the CDC is recommending it.
I’m getting calls from associations who are wondering if they are now powerless to take necessary precautions to avoid the spread of COVID. Again, the answer is you are not powerless and on the contrary, never lost your ability to continue to make reasonable rules to protect your community.
So what do you need to do? Put the proposed rule on an agenda for a properly noticed Board meeting. At the board meeting, make it extremely clear why the rule is being made. Put in on the record and in a resolution or motion that the Board is making this reasonable rule taking into account the health, welfare and safety of the community. Leave no doubt.