RE Q&A: Can Pandemic Postpone Construction Contracts?

A condo association signed a contract, but owners now have a pandemic-era worry about construction workers entering their unit. Could this be legally postponed?

STUART, Fla. – Question: We are obviously concerned about COVID-19 and the association is about to embark on a construction project that requires contractors to enter the unit. Many owners are concerned about contractors coming in the unit, even with masks. Can we delay the project? – P.R., Delray Beach

Answer: There are two parts of this analysis, the board’s duty to maintain and repair the condominium and the construction contract itself.

Obviously, many associations are sensitive to COVID-19 and implementing various protocols to mitigate the possibility of the virus entering the community. The first issue, however, is whether the project can physically wait. Because the board has a duty to maintain, repair and replace the common elements, a situation where all of the roofs are leaking every time it rains in July is different from a purely cosmetic project. The former may be necessary to proceed and the latter can obviously wait.

The second issue is whether the board has any ability to delay the contract itself. If the contract has already been signed and delivered to the contractor, the association may be in breach of the contract if it tells the contractors to wait. On the other hand, the contractor may be dealing with staffing issues due to COVID-19 and may welcome the flexibility.

Further, the contract may include a provision which excuses performance due to force majeure events, such as hurricanes and labor strikes and may be drafted broadly to include pandemics. If so, this may be an excuse by the association or the contractor to start on time. With such provisions, the specific language is very important and is different from contract to contract.

I would recommend that you have the contract reviewed by a licensed Florida attorney to determine your rights under the contract, and then the board can determine the best course of action depending on whether the work is critical or non-critical.

Question: Our condominium board just approved constructing pickleball courts next to the tennis courts. The cost is roughly $30,000 but the board insists it can do this without a member vote. We are upset because the proposed area is currently a sitting area with mature trees that we enjoy. Can the board do this? – T.D., Stuart

Answer: The answer is, of course, maybe. If you were to analyze this question solely under the Condominium Act, the statute requires the membership to authorize any material alterations to the common elements. A material alteration is broadly defined as a palpable or perceptive change in the use, appearance or function of a common element.

Here, the dirt is currently landscaped and has a sitting area. If the pickleball courts are installed, this area would now be used for an exercise area. This is a material alteration and the statute would require that at least 75% of the voting interests approve the change to pickleball before the board has the authority to approve the alteration.

The wrinkle, however, is that the statute also provides that your specific condominium documents may provide for a different approval threshold, and may also provide that certain alterations are exempt from owner approval altogether. For example, many documents provide that material alterations can be approved with only a majority of the voting interests present and voting at a meeting. Similarly, many documents provide that only material alterations exceeding a specific dollar threshold require approval.

Here, if your documents provide for something different than the statute (and many documents do provide something different) then the pickleball court may be exempt from a vote if the documents allow the board to unilaterally approve alterations up to, for example, $50,000. Thus, the recommendation is that you have your documents and the pickleball proposal reviewed by a licensed Florida attorney to determine if a vote is required. From the board’s perspective, it’s also important that the board confirm whether or not a vote is required before you start construction.

Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

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