Albert Moore, Attorney at Law

What Authority Does An Association Have To Cancel, Postpone, Or Reschedule Membership And Board Meetings, And Can Statutory Notice Provisions Be Bypassed?

It is necessary to provide notice of board meetings and annual meetings, which are controlled by the governing documents and the Florida statutes. There is nothing about COVID-19, in my opinion, that would justify a board saying that they had to hold a meeting without notice. There are processes in place for emergency meetings, and while the notice requirements for these meetings are certainly less than they are for regular member meetings, providing no notice whatsoever would likely result in the meeting being invalidated and unenforceable.

With regard to the requirements for holding meetings, most governing documents discuss the initial board meeting and require an annual meeting, but otherwise do not contain many meeting requirements. The annual meeting will be the only requirement unless there is a petition made from 10 percent of the membership to have a special meeting of the members, or unless a board member announces that there will be a special meeting for a particular reason. If the governing documents state that there will be a board member meeting at least quarterly or monthly, then those meetings will be required, and only emergency situations would result in forgiveness for not holding those meetings.

If the board decides to cancel the required meetings in light of COVID-19, then it may be necessary to go to court or the state and request some kind of relief. Simply cancelling the meetings would be hard to justify since there are many options for virtual or phone conferences that would honor social distancing.

What Authority Does An Association Have To Close Or Restrict Access By Owners And Occupants To Amenities Or Other Parts Of The Community, Especially During The COVID-19 Restrictions?

This authority would most likely extend from the governing documents, which should delineate the powers of the directors and officers to take action for the public health, safety, and well-being of the association. The language used in this regard might be broad, and it is possible that governing documents would be silent on this issue; if this were the case, then a member could certainly argue that the board doesn’t have the authority to restrict access to amenities or certain areas within the community. However, even if the governing documents do not include this authority, many associations are treated as quasi-governmental entities, and as a result, there is an overriding philosophy that they should be allowed to make decisions when the public health, safety, and well-being of the community is at risk.

The other issue that coincides with this is that many members feel that they shouldn’t necessarily have to continue paying assessments when they are not being allowed full use of the amenities. There is a long line of case law that states that a member cannot stop paying assessments strictly because of the fact that amenities may be closed down, especially if they are closed on a temporary basis. The problem is that the current COVID-19 situation is so novel and there is so much data coming from so many different sources that there is no plan on when things should reopen. There are arguments on both sides and a lot of associations are very risk-averse, which makes sense because they have a fiduciary duty not only to themselves, but to all of the other members. So, it’s important that they remain prudent, but this doesn’t come without the risk of members filing suit over the issue of paying for amenities that they can’t access.

What Authority Does An Association Have To Restrict Or Prohibit Guests, Contractors, Vendors, Or Other Outside Persons From Coming Into A Community During The COVID-19 Shutdowns And Restrictions?

Governing documents generally give the boards a great deal of discretion to impose certain restrictions, and even if this isn’t the case, there’s a general rule of law that associations are quasi- governmental institutions that have the authority to act in the interests of the safety, health, and well-being of the community at large. As a result of this authority, many associations have restricted visitors from neighboring states where there have been coronavirus hotspots.

In the case of a contractor who, for example, may only need three more days to finish a job, it may be wise to allow them to finish in order to avoid a potential lawsuit from someone whose home would be uninhabitable as a result of the contract being paused or canceled. If, however, the board prohibited a contract that would take a year to finish, then the board would have a much greater chance of coming out on top should that matter go to litigation. Ultimately, it would depend on the facts of the situation and the judges and arbitrators. I believe there is a whole new line of case law on the horizon.

Can The Association Ban Its Own Contractors And Vendors From Coming Onto Property Or Modify Their Method Of Delivering Goods And Services Without Violating Contract Terms During The Shutdowns And Restrictions?

Whether or not an association would be able to justify backing out of contractual terms with a contractor or vendor would depend on whether force majeure applies, which is to say the current pandemic qualifies as an act of God and has precluded the association from fulfilling their obligations. However, if an association stops payment to a vendor, the vendor will probably have a real problem with that. An association probably wouldn’t be obligated to pay a vendor or contractor if that vendor or contractor was prevented from working, but there is an argument that the association should still pay even if they aren’t allowing a contractor or vendor to complete the job according to the contractual terms. There would be a real problem, however, if the association were disallowing members from hiring their own contractors to work on non-common areas while at the same time letting their own contractors work. Ultimately, these matters will depend on the factual scenario at hand and the judges and arbitrators who deal with these cases.

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