Condo emergency powers can restrict contractors, vendors in pandemic

Ryan Poliakoff, Condo Q&A
Published 10:33 a.m. ET Aug. 29, 2020


Ryan Poliakoff (Photo: Provided)

Dear Poliakoffs,

My husband and I are selling our condo. We have a buyer who wants to renovate. We are told that the board has suspended all construction until further notice due to COVID-19.

Our construction season in the building is April 1 to Nov. 30. It looks like any potential buyer will have to wait until April 2021 to do any renovation, which is a serious deterrent to any sale.

Was this suspension of construction work due to COVID-19 legal? If this decision was made in a board meeting, minutes of that meeting, purportedly held on June 25, 2020, are not yet available to residents. I might also add that a board member told me off the record that that decision was led by the building’s management company. 

Signed. D.B.

Dear D.B.,

As we’ve discussed in the past, the Condominium Act, at 718.1265, Fla. Stat. grants broad emergency powers to condominium associations “in response to damage caused by an event for which a state of emergency is declared …” 

A state of emergency has been declared with respect to the COVID-19 pandemic, and the conventional wisdom is that the damage caused by the disease is sufficient to trigger the powers contained in the Act.

Among the listed powers are the ability to, “based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.” 

I think it’s obvious that language was drafted to deal with dangerous structures in the event of hurricane damage, but there’s no legal reason it would not apply here, as well.

So, the association has effectively chosen to determine that the property is unavailable for entry by construction workers until further notice to protect the health of owners.  I do think that would be legal, even understanding the dramatic impact that this has on the community and on the sale of your unit. 

In order to be enforceable, this rule would have to be passed by the board at a board meeting that was noticed 14 days in advance by mail and posting on the property (as it may be considered a rule regarding unit use). 

The fact that the minutes are not yet available may simply be because they have not yet been approved — the minutes of one board meeting are normally discussed and approved at the next board meeting, and the draft would not be circulated until that time.

I think your best option would be to speak up at a meeting and explain to the board that construction workers can be safely allowed to work within the units with proper restrictions and policing (requiring them to wear masks in all common areas, for example). 

Still, I know many other condominiums that have prohibited construction and other vendor visits due to COVID-19 (sometimes with exceptions for existing permitted projects).  This is one of the many unfortunate side effects of the pandemic that we all need to accept until better therapeutics or a vaccine are developed. 

Especially if you happen to be a community with a significant population of older persons (as is true of many Florida condominiums), I am sympathetic to the board’s concerns.

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Dear Poliakoffs,

I have lived in the same HOA since 2002. It’s an older development, so things need attention, but for an extended period we have had no access to the pool due to long overdue maintenance issues.

The board dragged their feet since at least one of those members stated that she didn’t see why we even need a pool since she doesn’t use it!  So now that we have put pressure on them, they are finally moving forward, but the estimate for homeowners being able to use the pool again is March 2021.

It’s been unbearable having no pool access since we have no outdoor space of our own and my life has been negatively affected by not having access to a pool. I just found a nearby tennis club that has monthly pool memberships, so I joined for $60 per month and plan to use it for August and September.

Do I have the right to reduce my assessment payments by $60 each month I have to pay for the pool membership? 

Signed, J.P.

Dear J.P.,

The covenant requiring you to pay assessments is a separate obligation from the Association’s obligation to maintain the common property, and you cannot withhold assessments due to the association’s failure to fulfill its obligations. 

Instead, you would have to sue the association to compel it to abide by its responsibility to maintain the pool.  As you have finally convinced them to move forward, that lawsuit, particularly over $120 in damages, would not be fruitful. 

Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law.  This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles.   Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.  Email your questions to [email protected]  Please be sure to include your location.

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