Q: Lee County has information for homeowners’ association leaders. Professional property managers and residential community associations can now take steps to protect their communities in the event of a hurricane or other declared major disaster in Lee County.
FEMA regulations require that private or gated communities have a current Right of Entry and Indemnification form on file with Lee County before any disaster debris recovery crews are allowed to entry into the community. The Right of Entry would only be used as necessary during the recovery period following a declared state of local emergency. Lee County now offers a simplified process to submit the paperwork. The form is located at: http://leegis.leegov.com/ROE. This form needs to be filled out only once a year.
Lee County Solid Waste encourages communities located in unincorporated Lee County, Bonita Springs (unincorporated areas of Bonita outside city limits only), and the Village of Estero to complete this process. (Betsy Clayton, Lee County Director of Communications)
A: Thanks for the information. Clearly, the timely removal of fallen trees and other debris was one of the most significant challenges faced by almost all Southwest Florida communities in the aftermath of Hurricane Irma in 2017.
The Stafford Act is a federal law designed to provide federal assistance to state and local governments after a natural disaster. For example, President Trump signed an emergency declaration for Florida after Irma that authorized FEMA to provide assistance for debris removal at 75% federal funding. When a municipality obtains FEMA approval for debris removal from private roads and property, condominium and homeowners’ associations will generally need to execute a right of entry agreement in order to grant permission for the municipality’s contractors to access the property. Generally speaking, community associations are not eligible for direct assistance from FEMA for debris removal.
FEMA’s 2017 Public Assistance Program and Policy Guide states that prior to a local government removing debris from private property using federal funds, there must be confirmation of authorized access and an agreement to indemnify the government and its employees, agents, and contractors from any claims arising from the removal of debris from private property.
An association’s indemnity assumption pursuant to such an agreement is a serious matter. Not only does the association hold harmless the applicable units of governments, but also its contractors and subcontractors for any property damage, bodily injury, or death to persons on the property resulting from the debris removal. My advice is to discuss this matter with both the association’s insurance advisors and legal counsel to understand the association’s position should a claim be made in the event of a mishap occurring during the debris removal process.
Further, the association must confirm its legal authority to grant access to the property as the property owner or the authorized agent of the owner. Different legal considerations will typically apply in condominium and homeowners’ associations. For example, does the association have the right to grant access to private lots, which the association does not own? Again, proper legal review of the association’s governing documents and applicable statutes should be undertaken before the board authorizes execution of the agreement.
I think it is very desirable for both associations and the County to “get ahead” of this issue. I have found that dealing with both governmental entities and association boards in the wake of a significant disaster is almost always less than optimal, for a variety of obvious reasons. While we all certainly hope that Mother Nature cuts us a well-deserved break during the 2019 hurricane season, which began June 1, we all know that you never know.