Opinion: Fuzzy government rules leave condo boards in coronavirus quandary

The COVID-19 pandemic has rewritten the operational script for many industries, including the community association industry. As with most of life’s challenges, we are acquiring take-away lessons that will help us adapt even more quickly the next time a curve ball heads our way.

The lessons our boards, residents and managers have learned over the last few months only reinforce the constants that those of us who have served in the community association arena have known for a long time: Serving on a board of directors is not for the faint of heart, and you’re only as strong as your governing documents and the professional advisors you rely upon to make informed, reasonable decisions for your community.

There are surely more to come before the COVID-19 pandemic is truly behind us, but for now, one of the most disappointing lessons that we’ve learned is that government won’t solve our problems — and they may even contribute to them.

Sadly, none of these orders accounted for the manner in which private residential communities with elected boards of directors operate and the limitations they face in terms of a lack of insurance coverage for damages related to communicable diseases and limited manpower to monitor behavior and perform heightened cleaning protocols. The absence of a consistent message and a uniform set of safety guidelines from the various levels of government has clearly made a bad situation worse.

The entire landscape became even more confusing when the Department of Business and Professional Regulation (DBPR) weighed in and issued Executive Order 2020-04 on March 27th advising that certain (but not all) emergency powers found in Chapters 718, 719 and 720 of the Florida Statutes were available for use by boards of directors in the midst of this pandemic, and then issued a follow-up Executive Order 2020-06 on May 20th which declared that those emergency powers would end on June 1st.

It is arguable that the DBPR exceeded its scope of authority in issuing either of its orders. However, it is indisputable that the DBPR undercut boards’ ability to safeguard their residents despite the extension of the State of Emergency into July. This is a bona fide life-safety issue, particularly in those communities with active infections or vulnerable demographics, and the DBPR’s latest order left community associations boards with considerable doubt as to their continuing ability to protect their residents and staff from the virus. Many boards have turned to counsel for advice on their options and the risks to the community associated with those various options.

All of the orders issued by local governments represented the minimum or floor of what boards could impose in terms of COVID-19 protocols not the ceiling, although most association residents didn’t see it that way. Many residents believed that when a county permitted pools to reopen subject to certain guidelines, that meant that their association pool should reopen regardless if the association had the resources to reopen safely. Some of the most recent local orders provide for just the opposite. Simply put, they say, “If you cannot reopen in accordance with safety guidelines, do not reopen.” Thankfully, many communities wisely worked with association counsel to reopen in a manner that made the most sense for their community.

The biggest collective lesson we’re learning is that the proverbial cavalry is not coming to the rescue. The input from government officials across the board has been inconsistent, confusing and lacking full acknowledgment of how private residential communities are operated. Volunteer boards and their professional advisers will have to continue to make the best decisions regarding association operations and enforcement to provide the standard of due care that their residents deserve.

Donna DiMaggio Berger is a shareholder at Becker Law, a board-certified specialist in condominiums and planned development law, and the executive director of the nonprofit Community Association Leadership Lobby. She was also appointed chair of the Florida Bar’s Pandemic Task Force. Her committee is working to revise the statutory emergency powers to make them clearer and more available to boards grappling with both natural disasters and now a contagion.

This story was originally published June 9, 2020 at 7:47 AM.