Examining the Association Loss Prism

By David B. Haber, Esq., and Jonathan Goldstein, Esq.

Safety / Mitigation

The first considerations for any association after a storm should be safety and loss mitigation. While immediate loss mitigation efforts help to preserve property improvements and are a condition for insurance claims, they also promote safety by preventing mold, fire, debris, electrical hazards, etc. Every association should have a disaster plan, which should be consulted and implemented upon declaration of a state of emergency. Before landfall, the association can circulate first responder information and contact information for officers, directors, key management personnel, third-party vendors, and professionals. In addition, information should be provided to the owners on how to contact management personnel (including cell phones) and city, county, and state officials and hurricane offices, as well as how to contact FEMA. The association must ensure that the property is ready for the storm, including backup systems, emergency supplies, generator preparedness, proper use of existing hurricane protection, and removal of patio/balcony furniture, pool or lawn chairs, etc. The emergency plan and circumstances should dictate system shut-downs, emergency meeting procedures, delegation of emergency contracting authority, and parameters for safety-related property access restrictions, where appropriate.

Both condominium and homeowners associations are provided emergency powers by §718.1265 and 720.316, Fla. Stat., respectively, for any event in which a state of emergency is declared (such as a hurricane) as long as damage is caused by that event. These statutes contain exceptions to typical governing requirements and flexibility to take emergency measures in furtherance of safety and mitigation. These powers include the power to mitigate damage and take safety measures, such as debris removal and water restoration for mold avoidance. In condominiums, the association has the power to contract on behalf of owners for items or services necessary to prevent further damage, irrespective of whether the owner(s) are ultimately responsible for such service or materials.

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