Dear Valued Clients and Business Partners:
First and foremost, our firm extends our best wishes for health and safety as we collectively engage in this battle of epic proportions against the coronavirus pandemic. Our law firm remains committed to servicing the needs of our clients without interruption during this time of critical need with changes coming daily affecting community associations and the law applicable to them. We likewise remain committed to educating our valued clients and business partners. We have taken this opportunity to prepare a summary of the most important emergency governmental orders which have been issued to date affecting community associations. We will continue to provide regular updates in connection with the coronavirus pandemic and developments in the law affecting community associations as we move through this critical time. Please feel free to reach out to us directly with questions and concerns and above all, please be safe.
SUPREME COURT OF FLORIDA ADMINISTRATIVE ORDER No. AOSC20-17
March 24, 2020
The Supreme Court of Florida’s Administrative Order addresses numerous emergency measures in the Florida state courts including jury proceedings and jury trials which have been suspended through April 17, 2020; defining essential and critical trial court proceedings; and administration of oaths via remote audio-video communications equipment. Additionally, community associations may be impacted by the suspension of the issuance of writs of possession through the close of business on Friday, April 17, 2020. This certainly prohibits issuing a writ of possession in favor of the Association in connection with a lien foreclosure action or one to evict a tenant for failing to pay rent to the Association in connection with a delinquency by the owner.
FEDERAL “CARES” ACT
March 27, 2020
The Federal “CARES” Act, commonly referred to as the “Coronavirus Relief Act” includes the suspension of foreclosure actions by mortgage servicers as well is the processing of foreclosure -related evictions for 60 days beginning March 18.
Florida Department of Business and Professional Regulation Emergency Order # 2020-04 – Emergency Powers
March 27, 2020
Perhaps most directly impacting community associations is the emergency order issued by Florida’s Department of Business and Professional Regulation on March 27, 2020. The DBPR’s order purports to apply the emergency powers provisions of Chapters 718, 719, and 720 to the recent coronavirus pandemic with specific findings regarding how the emergency power provisions apply to community associations, including a determination of which ones do not. Chapters 718, 719 and 720 contain a list of emergency powers given to condominium associations, homeowners associations, and cooperative associations, “in response to damage caused by an event for which a state of emergency is declared pursuant to 252.36, Florida Statutes…”. There has been much debate as to whether the emergency power provisions of the respective statutes even apply, which may seem baffling. A state of emergency has been declared by Florida’s Governor and common sense would seem to mandate that community associations would have these emergency powers while a state of emergency is in effect in connection with the coronavirus pandemic.
However, the statute is somewhat unclear and leaves room for debate, including whether community associations are “responding to damage caused by an event”. The coronavirus pandemic is unprecedented in our time. I am therefore compelled to conclude as a general matter that the emergency powers provisions of the respective statutes do indeed apply, granting community associations the emergency powers enumerated in the statutes.
With suspect authority, the DBPR apparently disagrees to a certain extent. The emergency order limits the emergency powers which presently apply. Generally excluded is the authority to adopt a special assessment without an owner vote. The most common issues we are seeing involving our clients are those involving board and membership meetings and taking board action with social distancing requirements now in place. Board emergency powers related to meeting notices in addition to postponing and canceling meetings are included in the DBPR’s order and there certainly appears to be a general consensus in this regard.
GOVERNOR’S EMERGENCY ORDER NO. 20-87
March 27, 2020
VACATION RENTAL CLOSURES
The Governor’s Order affecting vacation rentals effectively spends all vacation rental operations in the state with all new reservations and bookings being prohibited. Chapter 509, Florida Statutes, addresses lodging and food service establishments as well as membership campgrounds. The statute is referred to throughout the Governor’s Order for purposes of definitions, including “vacation rentals”. Section 509.242(1)(c), Florida Statutes defines vacation rental as any unit or group of units in a condominium or cooperative or any single-family or multi family dwelling unit that is also a transient public lodging establishment. This includes the rental of any dwelling unit which is rented for periods of less than 30 days or one calendar month, whichever is less; advertised or held out to the public as a place regularly rented to guests; or which is otherwise regulated by the DBPR pursuant to 509.241, Florida Statutes. Excluded are active rentals previously booked with a scheduled check in no later than March 28, 2020.
GOVERNOR’S EMERGENCY ORDER NO. 20-91 “STAY AT HOME” ORDER
April 1, 2020
The Governor’s “Stay at Home” Order is the most significant and all-encompassing of the orders issued to date. All residents of the state of Florida have been ordered by the Governor to stay at home outside of essential services and activities. Only businesses which constitute “essential services” as defined by the order may remain open. Additionally, only “essential activities” may be engaged in. Essential services are defined by the Order as those listed by the Department of Homeland Security on March 28, 2020 in addition to those in the Gov.’s Executive Order 20 – 89.
Perhaps most importantly as it pertains to community associations, a social gathering in a public space is not an “essential activity” and local jurisdictions in Florida have been ordered to ensure that groups of people greater than ten (10) are not permitted to congregate in any public space. Essential activities do include participating in recreational activities consistent with social distancing guidelines such as walking, biking, fishing, running and swimming. Note, however, that this is merely a list of examples in the Order and does not constitute a complete list of permitted recreational activities. For example, many golf courses remain open and have implemented specific procedures and protocols to maintain social distancing guidelines and it appears those facilities will remain open with any food and beverage services being suspended.
This has had a direct impact on community recreational facilities including pools and clubhouses. While it is nearly impossible to develop “general rules”, we believe community common facilities can be closed to the membership where it is not practical to maintain social distancing guidelines and the facility acts a national gathering point for homeowners. Commonly owned facilities such as a golf course may be permitted to remain open if the Association finds that social distancing guidelines can be reasonably maintained and do not become problematic.
GOVERNOR’S EMERGENCY ORDER NO. 20-94 MORTGAGE FORECLOSURE AND EVICTION RELIEF
April 2, 2020
The Governors mortgage foreclosure and eviction relief order somewhat mirrors the relief provided by the Federal CARES Act. It appears to only apply to mortgage foreclosures and residential tenancies. For example, the language pertaining to evictions only applies to, “an eviction cause of action under Florida law solely as it relates to nonpayment of rent by residential tenants…”. A lien foreclosure action is not a mortgage foreclosure and it therefore appears that the Governor’s Order would not apply to Association lien foreclosure actions. Likewise, an action to remove a tenant for failure to comply with the governing documents (where the governing documents specifically provide for such relief) likewise does not constitute an eviction relating to the nonpayment of rent by a residential tenant.
Notwithstanding, it certainly appears that many Judges and Clerks of the Court are interpreting both the federal and state orders broadly and have begun rejecting Motions for entry of foreclosure judgments in Community Association lien foreclosures. Likewise, the Supreme Court of Florida’s Administrative Order will certainly prohibit issuance of a writ of possession to a Community Association at the conclusion of a lien foreclosure action. We believe that lien foreclosure actions will likely be treated in practice much like a mortgage foreclosure and will be stayed and not allowed to proceed. We recommend that our clients take all action other than pursuit of new lien foreclosure actions or entry of final judgments. The Association should certainly take all action necessary leading up to the recording of a claim of lien.
As always, please consult directly with your Community Association counsel, most especially in these uncertain times. Keep in mind that your individual facts and circumstances will likely lead to different conclusions regarding the application of the law to community associations throughout the coronavirus pandemic.