Should Associations Re-Open?

04 May 2020

Impact of the State of Florida Executive Order Implementing the Phase 1 Plan to Re-Open Florida

As most of you are probably aware, the Governor has issued a new Executive Order implementing the Phase 1 Plan to Re-Open Florida. We are extremely concerned that numerous individuals and various associations may believe that this constitutes a carte-blanche to open up their common property despite the number of people who may congregate there. Ultimately, we are very concerned that such course of action may in many instances, jeopardize the health, safety and welfare of the community’s owners, residents and guests.

The threat presented by COVID-19 is not over. In fact, the threat, ostensibly, is not even close to being over. As such, this firm is extremely concerned regarding the potential risk, potential claims and potential lawsuits which may arise from associations prematurely opening their common property (at least such property where people commonly congregate). In fact, we are concerned that zealous law firms may pursue claims and litigation against associations based on allegations that owner(s), resident(s) and/or guest(s) contracted COVID-19, became ill and/or died as a result of such associations’ action(s) and/or failure(s) to properly act. More specifically, associations may be faced with claims and lawsuits predicated on allegations that:

  1. the association had a duty to properly maintain and operate its common property, which the association failed to do;
  2. the association failed to implement reasonable and necessary measures to protect its owners, residents and/or guests;
  3. he association is responsible for owner(s), resident(s) and/or guest(s), who contract COVID-19, becoming ill and or die; and
  4. the association is liable with respect thereto.

While we appreciate that everyone wants to get back to normal and have the unfettered use of such areas and amenities, the threat(s) to the health, safety and welfare of such individuals and the potential risk(s) to associations have not been eliminated.

While we must acknowledge that associations may be at risk for failing to close their common property, we must, likewise, acknowledge that they could be at risk for closing them. As such, while we appreciate that strong arguments can be made that the owners have the right to utilize such areas and facilities (potentially including access and easement rights), we continue to believe that a higher duty may exist (e.g., endeavoring to protect such individuals and their safety). Again, although we acknowledge that arguments may exist which could be used to attempt to justify having such common property open for use, this does not alleviate our concern. Moreover, in those communities housing older persons and/or persons suffering from underlying medical conditions, we must acknowledge that their association(s) may want to be even more protective. In fact, Section 2B of the State of Florida Office of the Governor Executive Order Number 20-112 provides the following:

Office of the Governor
Executive Order Number 20-112

(Phase 1: Safe. Smart. Step-by-Step. Plan for Florida’s Recovery)

Section 2.    Responsible Individual Activity

B. Except as provided in Section 2(A)(1) of this order, senior citizens and individuals with a significant underlying medical condition (such as chronic lung disease, moderate-to-severe asthma, serious heart conditions, immunocompromised status, cancer, diabetes, sever obesity, renal failure and liver disease) are strongly encouraged to stay at home and take all measures to limit the risk of exposure to COVID-19. (emphasis added)

The United States and Florida, in particular, is home to a vast number of individuals who suffer from the above health conditions and/or are senior citizens. Given the above, associations opening up their common property, at least those where individuals commonly congregate, may be exposing such associations to even greater legal risk(s) and threat(s).1

In that the particular facts and circumstances of each association vary, we encourage our clients to contact us to address the issues with which they are faced, especially to the extent that:

  1. they have questions or concerns;
  2. their members are inquiring or pushing for the opening of their community’s common property; and/or
  3. they need to properly explain and/or justify their actions and decisions.

These are challenging times for community associations and we are here to help guide you through the obstacles.   As an essential business, we are open and ready to assist you.  If we can be of any assistance, please call our Public Relations Department at any of the numbers at the end of this email.  You may also contact our 24/7 phone line after business hours.  The firm that Embraces Community is here for you.

1Given all the nuances and issues associated with the above, we are considering putting on a webinar regarding this topic.