Albert Moore, Attorney at Law

Does The Director Of A Condominium Association Also Have To Be A Member?

According to the statute, the director of a condominium association does not also have to be a member, but it is possible that the bylaws, declaration of condominium, or declaration of covenants for an HOA will establish that a director has to be a member. Oftentimes when an association is developed, the developer has control over the board until turnover happens (which is when enough units are sold for the members to take over the board). Most developers do not want to have a requirement that someone must reside at or own the properties. This is because the developer puts people on the board of directors that either work for the developer or know the developer and are going to vote in like manner as the developer wishes. If there is a declaration that is leftover from the developer and it is not changed once turnover occurred, then it typically will not have a restriction that a director has to be an owner in order to be qualified to be a director. However, it is important to check the governing documents.

As A Result Of COVID-19 Restrictions, Have Contractors Been Able To Delay The Completion Of HOA Projects Or Even Cancel Contracts Altogether? Was The Association Able To Do The Same?

It is possible that an HOA project could have been delayed or altogether canceled as a result of COVID-19 restrictions. Most written contracts in the state of Florida rely on a format that contains substantive changes or boilerplate language and don’t often get changed. There are merger contracts, jurisdictional issues, alternative dispute resolution, and attorney fee terms within the boilerplate contract.

There is also what’s called force majeure, which means that if the performance of a term in the contract is impossible via some “act of God,” then the person that is obligated to perform may be excused from the performance of that contractual term. The question may arise as to whether pandemics are considered to be an act of God if they’re not specifically listed in the force majeure part of the contract or anywhere else in the contract; I would say that pandemics probably would be considered acts of God (an act of God doesn’t necessarily need to be a good thing—it could be a natural disaster or a pandemic like the one we are in now).

The question then becomes whether the act excuses a particular obligation. There may be one obligation, but there are usually more than one for each party in order to fulfill their obligations under a contract. Prior to the COVID-19 pandemic, the prevailing philosophy was that the particular term that is being requested to be excused from one party or the other must relate directly to the outbreak. Some of the issues are not as direct as what is typically anticipated under force majeure, such as saying that one is unable to fulfill obligations due to the negative effects of COVID-19 on the economy. An example of what would typically be included under force majeure is a situation where there is a real estate contract and a date for closing, but the closing is prevented from occurring on time due to governmental stop stations at the border. Even this, however, would not necessarily mean that the party would be excused entirely from the contract since the closing could still occur later on.

The COVID-19 pandemic has presented a unique situation, as there is no case law that deals with a pandemic like this. There will be a lot of lawsuits during COVID-19, some of which will be on force majeure. I receive emails from the Federal Bar Association and the Florida Bar on courses to take for learning how to deal with this situation, but they can’t give a strong prediction for how this will work out and how judges, arbitrators, appellate courts, and supreme courts are going to deal with this issue. Ultimately, whether or not an association will be able to get out of a contract will depend on the facts specific to the case at hand.

For more information on HOA Associations, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (772) 242-3600 today.

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