Condominium Associations

Condos and HOA's

In gated communities gate guards are usually not security guards

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Some people who live in gated communities get a false sense of security that they are “safe” because they live behind the gates and there are “security guards” at the gate.  They probably don’t understand that their community is just providing gate guards to control access through the front gate but they do not guarantee any “security” is being provided.

If a resident gives the guard house the name of a friend to be allowed access and the friend is actually a thief and then enters and steals from a neighbor, the gate guard did nothing wrong in allowing the access to the thief that was requested by the resident.

It is important to remind residents in gated communities that the Association and the Gate Guard Company is there to check who is permitted by the residents to come and go and not to provide or promise “security”. Broken gates or fences should be repaired and residents should promptly be informed if and when crimes are reported to occur in the community.

Some may remember a few years back there was a rash of home invasions in local gated communities.  It was determined that some thief’s prefer gated communities because less people artearound and they can walk in through the golf courses from neighboring roads and enter through the rear of the homes.

It is interesting to look at a few cases over the years that have or have not found liability of a homeowners’ or condominium association when crimes were committed in gated communities by outsiders.

In the 1983 case of Admiral’s Port Condo v. Feldman, the Feldmans were mugged on the Northeast parking lot of the Condominium.  The Association had established security procedures involving ingress and egress to the buildings.  Prior to this incident, no crimes against persons had been reported on Admiral’s Port property.  The only evidence presented of violent crimes occurred a substantial distance away from the Condo.  The Court found “no foreseeability” and no evidence the Association breached any duty owed to the Feldmans with respect to the security measures that it did employ.

Conversely, in Vazquez v. Lago Grande HOA decided in 2004, the gate guards were specifically warned by the owner not to let the ex-husband of the owner’s guest in because of his potential dangerousness.  The ex-husband then walked into the community past the security guards on duty and shot and killed the ex-wife.  In this case the Developer advertised the complex on the basis of security and collected assessments for safety provisions offered by the complex. The President of the HOA verified that they were there to protect the safety of the residents and guests and they had the right expect the complex would be safe “as promised”.  The Board gave guard gate post orders how to screen people for entry but there were numerous complaints made to the Association that visitors were not being logged in and were entering the complex without authorization- especially on foot.  The Plaintiffs were awarded 4 million.  The Court held that once the Association undertook obligations of providing security, it had to do so.

Last, in the 2015 case of Sanders v. ERP Operating Limited Partnership, the Sanders were shot to death inside their apartment that was marketed as a Gated Community. Three years prior to the murders, the gate was broken resulting in an armed robbery and assault. The gate was broken two months prior to the murders and twenty criminal incidents occurred within a three year period and none were reported to the residents. The jury awarded $4.5 million. The Court ruled that the jury need to decide whether the inoperable gate was a proximate cause of the deaths. Even if a victim voluntarily opened a door for the assailants that did not negate the apartment complex’s breach of duty by allowing the inoperable gate which was intended to limit access to only those authorized.

Homeowners Associations

Are your governing documents nuisance provisions strong enough?

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Many older, or Developer drafted, community governing documents have weak or lack any nuisance provisions.  This prevents many Condominium and Homeowners’ Associations from being able to legally go after obnoxious residents for their bad behavior.

 We are seeing many more people escaping from lock downs up north this Season to enjoy our Florida sunshine and Florida freedom. Many of these coming are not owners of condominium units or homes here but are rather renters or guests of owners.

Many of these short term visitors do not have the same respect for their neighbors and the property that most owners do as they are not invested in the community.  As a result, some display bad behavior such as yelling and cursing at other residents, playing music loudly, or leaving personal property such as beach chairs or bikes all over the common areas.

Without good nuisance language in your Declaration of Condominium or Declaration of Covenants, it can be difficult or not impossible to legally get these offenders in line.

Here is an example of what we consider good “enforceable” nuisance language:  No owner shall use his unit or the common elements or permit his unit or the common elements to be used, in any manner which constitutes or causes an unreasonable amount of annoyance or nuisance to the occupant of another unit, or which would not be consistent with the maintenance of the highest standards for a first class residential condominium, nor permit the premises to be used in a disorderly or unlawful way.  The use of each unit and the common elements shall be consistent with existing laws and the condominium documents, and occupants shall at all times conduct themselves in a peaceful and orderly manner.  No, owner, tenant or guest may disturb any other owner or resident with the use of profane, obscene, threatening or abusive comments either orally or in writing or by their conduct on the property that is abusive or threatening.

With this type language, an Association can send violation letters to the nuisance offender and if they don’t start acting civil and quit annoying other residents after notice, the Association can then bring legal action against them.  It can first request pre-suit mediation or arbitration and if that does not work, then sue the offender in local court requesting the court order an injunction against the offender requiring them to quit being a nuisance in the community. The Association can also request that the court award prevailing party attorney’s fees to it.  That means if the Association prevails, the offender may have to pay the Association’s attorney’s fees in addition to any of his or hers own attorney’s fees.

If the offender continues to create a nuisance or starts new nuisances after the injunction order, then the court could find the person in contempt of court.  In that case, the court would usually order the offender to pay a fine.  If that does not stop the violations, the court could ultimately send the offender to jail as a penalty.

  The bad acting visitors need to understand that such bad behavior will not be tolerated in your community.  Sometimes an example needs to be made to prevent such behavior in other visitors from happening.  The bad actors behavior can get very costly for them.

You should check you governing documents sometime to make sure you have nuisance provisions that can be enforced.  If not, you should seriously consider amending the documents so that you can stop bad resident behaviors.  Otherwise, these types may yell freedom of speech, thumb their nose at you, and continue to wreak havoc around your community.

Condominium Associations

Grandfathering of Rental Restrictions in Condos and HOA’s

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For many years now, Chapter 718, Florida Statutes has provided that any new rental restrictions approved by the membership of a Condominium as an amendment to the governing documents only apply to those who voted for the amendment or those who obtained title to the unit after the amendment was approved and recorded in the County Public Records.

 Section 718.110(14), Florida Statutes, applicable to Condominiums, provides that:  “An amendment prohibiting unit owners from renting their units or altering the duration of the rental period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of the amendment.”

 There was nothing similar in the law governing Home Owners Associations’ (HOA’s) when they amended their governing documents to change permissible lease period durations and number of leases per year.  If, the membership properly approved such more restrictive amendments, they applied to all home owners.

This changed effective July 1, 2021 when the Florida Legislature passed Senate Bill 630. Now, for all amendments to HOA’s governing documents enacted after July 1, 2021, more restrictive rental regulations approved by the members will also, like Condos, only apply to a parcel owner who acquires title to the parcel after the effective date of the amendment or to a parcel owner who consented to, or voted to approve, the more restrictive rental regulation.

  However, there are exceptions to this new regulation in HOA’s.  If the amendment is to prohibit or regulate rental agreements for a term of less than six (6) months and/or prohibits the rental of a parcel for more than three (3) times in a calendar year, then the amendments will apply to all parcel owners.

So, in HOA’s, approved short term rental restrictions of less than six (6) months and limiting of rentals to no more than three (3) times a year will apply to all owners wherein rental restrictions of six (6) months or more or limits of three (3) times, two (2) times or one (1) time a year are applicable to owners who voted to approve the amendments and those who acquire title to the parcel after the effective date of the amendment.

  The intent of this new provision in HOA’s appears to be to disfavor short term leases less than six (6) months as well as disfavor multiple leases of four (4) or more times per year while still allowing grandfathering of current owners who want to lease at least six (6) months or shorter periods up to three (3) times a year while at the same time acknowledging that some owners purchased their homes with collection of rental income in mind.

Sales taxes come into play with rentals at six (6) months and if a parcel is advertised for sale for more than three (3) times a year for less than thirty (30) days, the State of Florida could consider the unit a “hotel/motel” which could then have to retrofit the parcel with the same fire and life safety and handicap equipment the same as a hotel/motel in Florida.

Condominium Associations

Owners in a gated community cannot access gate records

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Under Senate Bill 630 approved by the 2021 Florida Legislature which became effective as of July 1/ 2021, a new type of homeowners’ association records was added to the list that are not available or accessible to members.  “Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents” are now private and inaccessible to the members.  This would apparently include gate guest logs or video of guest vehicles entering the community.

Apparently spying on your neighbor or even spying on someone visiting your home is disfavored by the Florida Government.  Now we would assume this does not prevent the board or management’s ability to review the gate guest logs or videos for the purpose of determining who may be the perpetrator if illegal activity or damage has occurred within the community by a guest as the Association representatives would have a proper purpose as part of their job in operation and control of the community.  However, nosey neighbors cannot see these records.  For this prohibition to get into Senate Bill 630, apparently some serious spying or nosiness must have been going on in some community in Florida.  We sometimes see such problems arise in gated communities when ex-spouses or ex-boyfriend/girlfriend attempt, or succeed, in making unannounced visits.  Other times, someone may be running a business out of their house with delivery trucks or employees continually coming and going.

Other records that Section 720.303(5)(c), Florida Statutes already prohibited accessibility to members or parcel owners include:

  1)  Any record protected by the lawyer-client privilege.

  2) Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

  3) Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

  4) Medical records of parcel owners or residents.

  5) Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements and other personal identifying information of any person (However, an association may print and distribute to parcel owners a directory containing the name, parcel address, and all telephone numbers of each parcel owner except an owner may exclude his or her telephone numbers from the director by so requesting in writing to the association.  An owner may also consent in writing to disclosure of other contact information).

  6) Any electronic security measure that is used by the association to safeguard data, including passwords.

  7) The software and operating system used by the association which allows the manipulation of data.

Homeowners Associations

A sound legal foundation for your Condominium or Homeowners’ Association is important

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The collapse of the Champlain Towers building has brought renewed interest on structural building integrity to many Condo and HOA Associations.  We are seeing many Associations operating older buildings putting out bidding for new engineering structural review.

Such an engineering study will help insure the soundness of a building’s structural foundation.  However, what about an Association’s legal foundation?  Is the legal foundation sound when an Association is operating under old governing documents designed with the Developer in mind instead of the end users (purchasers) of the units?

Developer documents are drafted to assist the Developer in selling as many units as possible as quickly as possible so that the Developer can cash out and get on to building the next Development.

The Developer typically won’t be living in the project so there is no personal incentive to necessarily make the documents end user friendly. When there is no long term commitment and quick sale is the name of the game, such Developer documents many times will not require approval or disapproval of prospective purchasers or tenants or have well thought out protections to prevent owners from altering their units, homes, common element and limited common elements, or common areas or limited common areas without first obtaining the approval of the Board of Directors or an Architectural Review Committee. Adequate restrictions on pets, vehicles and guests may be non-existent or highly inadequate. These type restrictions may be left out by the Developer’s attorney drafting the documents because of the Developer’s client’s worry that they may inhibit or slow down sales.

If you limit pets or smoking, the Developer may believe sales to pet owners or smokers may be lost.  If you have approval processing of prospective purchasers or tenants, those individual with shaky backgrounds might not apply to purchase or lease.  If you prohibit recreational vehicles, boats or commercial trucks, that’s another group of potential buyers that could be lost.

Another problem with Developer documents is that they won’t necessarily reflect the current laws because the Developer drafter is using an old boiler plate, or many laws have changed since turnover of the project to the owners by the Developer.  The result of this deficiency is that the Board of Directors and Officers may follow what the outdated documents say only to find out later that they are violating current law on the matter as the law could have changed significantly since the documents were written.  This puts the Association in jeopardy of being sued by unhappy or dissident owners.

We get many calls from Association Directors and Officers who have old Developer documents because the documents are many times ambiguous and don’t address important matters adequately or clearly; such as who is to maintain, repair, replace or insure what parts of the units or homes, the limited common elements and the common elements or common areas (Association or Owner?).   This can drive up legal costs to the Associations in addition to the liability exposure to the Board.

The numerous problems trying to operate under old outdated documents can be solved by totally rewriting the Declaration of Condominium or Declaration of Covenants (for HOA’s), Articles of Incorporation and Bylaws of the Association.

The process usually takes from 3 to 9 months with legal counsel working closely with a document rewrite committee consisting of a few committee members with an interest in details involved with such a process.  The attorney will usually prepare the first draft for the committee’s review and input.  After the committee is satisfied with the product, it usually then moves to the board for Directors input and then input from any interested owners.  Finally, a formal proxy vote will be taken from the entire membership.  After approval of the members, any house rules and purchase and sales application forms will be updated to conform to the new documents.

Usually, once an Association has their new well written superior documents, legal counsel calls for opinions will wane with corresponding less to be spent on legal fees.  Although legal fees will have to be incurred for a rewrite, the savings in diminished future legal fees by having a solid legal document foundation for your Association is usually substantial.  In addition, Directors and Officers can sleep well once the Association has new documents that can be relied upon in running the Community.

Condos and HOA's

Surfside Towers Collapse contributed by yellow banana owners?

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We see some of the same decisions made year after year by some local Condominium boards. Whatever we do this year, let’s not raise our owners’ Assessments over last year’s amount. Usually, in such buildings, the reserves have been woefully underfunded with the owners opting to partially or fully waive the funding of Association reserves. This is the easiest way to keep the annual assessments from raising each year. If a necessary building repair expense arises, they can always special assess for that. These are typically older buildings with an older population of owners who are hoping to sell or die before any hefty assessments will come do. We call this the yellow banana crowd. In these buildings, the Directors see that they better not increase the assessments or they will be voted off the board.

In other buildings you have the usually younger, green banana folks, who want to live in their units for many years and want to keep their building in tip top shape so that their investment grows nicely and are willing to pay increasing annual assessments to do so.

The current law easily permits the conduct of the yellow banana owners and directors.  Section 718.112(f)2.a., Florida Statutes provides that: “In addition to annual operating expenses, the budget must include reserve accounts for capital expenditures and deferred maintenance.  These accounts must include, but are not limited to , roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. The amount to be reserved must be computed using a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance of each reserve item.  The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extensions of the useful life of a reserve item caused by deferred maintenance.  This subsection does not apply to an adopted budget in which the members of an association have determined, by a majority vote a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection.”

In taking the “optional” vote to reduce reserves or have no reserves, Section 718.111(f)4., Florida Statutes provides that the proxy question for the membership vote must say “in capitalized, bold letters in a font size larger than any other used on the face of the proxy ballot:  WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.”

From reading various reports about Surfside Towers, apparently after many years of putting off building structural repairs even after engineer warnings, the building’s board was finally levying special assessments to cover over 15 million dollars in building repairs.  This was, it appears now in hindsight, too little and much too late.

Association board, especially in older buildings, should take Surfside Towers as a wake-up call and start budgeting adequately for expected future repairs.  Nobody likes rising assessments year after year, but you can’t just keep kicking the can down the road.  Directors have a fiduciary (similar to paternalistic) duty to the owners to properly maintain the common elements of the building.  The board has the duty to prepare a fully funded budget each year and no one is requiring the board to put out a membership vote to waive or reduce the full funding of reserves.

If it has been a few years since you have had an engineering reserve study done on your building to make sure you have adequate budgets and adequate reserves, now may be the time to get a new reserve study done, start funding the Association reserves realistically, and making structural and preventive repairs on the building sooner rather than later.

Florida Legislature

New 2021 Legislation affecting Condominium, Cooperative and Homeowners’ Associations Part II

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This year two bills relevant to Community Associations (Senate Bills 630 and 56) became law effective July 1, 2021.  Last month we reviewed the provisions of Senate Bill 630. Today we will look at Senate Bill 56.  The review is the order presented in the Bill and not in any order of importance.

SB 56:  Applies to Condominium, Cooperative and HOA’s concerning collection of assessments by Associations and adds several procedural requirements before an association can recover attorneys’ fees in a collection matter.

Sending Out Invoices: The bill provides that if an association sends out an invoice for assessments or a statement of account, the invoice or statement must be delivered to the owners by first-class United States mail or by electronic transmission to an e-mail address maintained in the association’s official records. If an association decides to change the method of delivery of the invoice or statement, the association must deliver a written notice, by first-class mail to the owner’s last address as reflected in the records or to the property address, of the change to each owner, at least 30 days before the association sends the invoice or statement by the new delivery method. An owner must affirmatively acknowledge, electronically or in writing that the owner understands that the association will change its method of delivery of the invoice or statement before the association may change the method of delivery. The owner’s affirmative acknowledgment becomes a record of the association but is not available to inspection by other owners.

No Attorneys’ Fees in 1st Notice:  The bill further provides that an association may not require payment of attorneys’ fees related to a past due assessment without first delivering a written notice to an owner which specifies the amount owed to the association without an assessment of attorneys’ fees.  The association must give an owner the opportunity to pay past due amounts, within 30 days of the date of the letter, without imposition of attorneys’ fees.

Use Form and Follow Procedures:  The statute provides a form written notice for associations to use.  Most associations already provide such a notice, however, it is important to follow the procedural requirements for delivery of the notice.  A failure to do so may prevent the association recovering attorneys’ fees in a collection case. For example, the bill provides that the late notice must be sent first-class United States mail to the owner, at the last address of the owner as reflected in the association’s records and, if this address is not the property address, the late notice must also be sent by first-class mail to the property address.  A rebuttable presumption that an association mailed a notice in accordance with the bill is established if a board member, officer, agent or property manager attests in a sworn affidavit to such mailing.

45 Day Notice of Intent to File a Lien:  In condominium and cooperative associations, the bill provides that a lien may not be filed against a property without giving the owner 45 day notice of the association’s intent to file a lien.  The 45-day notice period will now be the same as the existing requirement in homeowner associations.

Condominium Associations

Unit owners’ right to speak, tape record or videotape meetings

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This is the time of year during Season is when most Condominium Associations have their annual members meeting as well as board meetings.

For some reason we see a scattering of Condominium Association directors who believe these Association meetings are for the directors to talk, argue, and make decisions and the members are there at the meetings just to listen in.  This belief could be coming from directors who are used to the corporate world and procedures used in private corporate meetings.

However, this is not the case in Florida as there are specific statutory “sunshine” provisions allowing for most all Association meetings to be open to the members with the ability for the members to speak at the meeting and to audio or video record them.  Exceptions to open Board meetings are only for meetings of the Board to discuss personnel matters or board meetings with Association legal counsel to discuss proposed or pending litigation matters.  For these two exceptions, the meetings can be closed to the members (executive session).

Concerning annual and special member’s meetings, Section 718.112(2)(d)7., Florida Statutes provides that: “Unit owners have the right to participate in meetings of unit owners with reference to all designated agenda items. However, the association may adopt reasonable rules governing the frequency, duration, and manner of unit owner participation.”

Section 718.112(2)(d)8., Florida Statutes provides that:  “A unit owner may tape record or videotape a meeting of the unit owners subject to reasonable rules adopted by the division.”

For board meetings, Section 718.112(2)(c) provides that:  “Meetings of the board of administration at which a quorum of the members is present are open to all unit owners.  Members of the board of administration may use e-mail as a means of communication but may not cast a vote on a matter vial e-mail.  A unit owner may tape record or videotape the meetings.  The right to attend such meetings includes the right to speak at such meetings with deference to all designated agenda items.  The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting.  The Association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.”

When the statutory section talk about the “Division”, it means the “Division of Florida Condominiums, Timeshares, and Mobile Homes”. The Division has adopted the rules discussed in these Chapter 718 Sections as follows:

61B-23-002(9)&(10), Florida Administrative Code provide: “(9) Subject to reasonable restrictions, any unit owner has the right to speak at unit owner meetings, with respect to all designated agenda items. On or after April 1, 1992, subject to reasonable restrictions, any unit owner has the right to speak at board meetings and committee meetings with respect to all designated agenda items.

(10) Any unit owner may tape record or videotape meetings of the board of administration, committee meetings, or unit owner meetings, subject to the following restrictions:

(a) The only audio and video equipment and devices which unit owners are authorized to utilize at any such meeting is equipment which does not produce distracting sound or light emissions.

(b) If adopted in advance by the board or unit owners as a written rule, audio and video equipment shall be assembled and placed in position in advance of the commencement of the meeting.

(c) If adopted in advance by the board or unit owners as a written rule, anyone videotaping or recording a meeting shall not be permitted to move about the meeting room in order to facilitate the recording.

(d) If adopted in advance by the board or unit owners as a written rule, advance notice shall be given to the board by any unit owner desiring to utilize any audio or video equipment.

(e) Unit owners are entitled to tape record or videotape board meetings and committee meetings occurring on or after April 1, 1992.”

Many Condominium Associations have adopted reasonable written rules govering the frequency, duration, and manner of unit owner participation in members meetings and board meetings and if your Condominium Association has not adopted such written rules it should consider doing so in order to ensure your meetings run smoothly.

Such rules can limit a member speaking to no more than three (3) minutes per agenda item unless the person running the meeting allows for an exception for a member to speak longer.  The Association can limit such speaking to either at the beginning of the meeting, during the agenda topic or at the end of the meeting.  The Association can require a member to sign-up to speak before the meeting begins.

Associations should also consider limiting the member participating to the member making a statement and not asking numerous questions of the board during their speaking time.  A protracted question and answer session with a member during their speaker time can quickly run past the three (3) minute limit wherein the member is hogging meeting time and directors and/or management are being put on the spot to answers questions they may not have good responses for without further research.  If the directors don’t readily know an appropriate response to a member’s question, it should tell the member that the board will take the question under advisement and answer the member at a later time after research or review.

Condominium Associations

Condo director’s term limits and other qualifications for the board

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Back in 2018, a bill passed the Florida Legislature that said:  “A board member may not serve more than 8 consecutive years unless approved by an affirmative vote of unit owners representing two-thirds of all votes cast in the election or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy”

This law become effective July 1, 2018. Since then, we periodically get calls, especially around election time, as to whether board service before 2018 counts towards the 8 years.

In many condominium associations, directors have served more than 8 years and the calls we get concern whether these directors who have served more than 8 years can run again for the Board.

Although there were mixed signals from the Florida Division of Condominiums, Timeshares and Mobile Homes of the Department of Business and Professional Relations, the Division finally stated last summer that because the 8 year term limit law did not come into effect until 7/1/2018, the 8 years of service limit did not commence until after 7/1/2018.

Therefore, no long term Condominium Association director has to worry about the 8 year limit until 7/1/2026.

Chances are, this term limit may very well be repealed before 2026.  So nothing to worry about any long term board member serving again for the board until at least 2026.

There are still other qualifications for a condominium unit owner to run for the board.  Section 718.112(2)(d)2., Florida Statutes, provides: “In a residential condominium association of more than 10 units or in a residential condominium association that does not include timeshare units or timeshare interests, co-owners of a unit may not serve as members of the board of directors at the same time unless they own more than one unit or unless there are not enough eligible candidates to fill the vacancies on the board at the time of vacancy. A unit owner in a residential condominium desiring to be a candidate for board membership must comply with (submitting their name as a candidate on time) and must be eligible to be a candidate to serve on the board of directors at the time of the deadline for submitting a notice of intent to run in order to have his or her name listed as a proper candidate on the ballot or to serve on the board.”

“A person who has been suspended or removed by the division under this chapter, or who is delinquent in the payment of any monetary obligation due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot.  A person who has been convicted of any felony in this state or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed in this state, is not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years as of the date such person seeks election to the board.”

It is important before placing a candidate’s name on the election ballot to make sure that person does not owe any money to the Association (assessments, fines, dues etc.) or is not a convicted felon.

Condominium Associations

Do purely virtual association meetings comply with the law?

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The first quarter of the year is when the vast majority of Condominium and Homeowners’ Associations hold their annual members meetings. With the risk of spreading COVID-19 still around until vaccinations get widely distributed, many Associations are continuing to turn to having virtual meetings, rather than in person meetings, utilizing internet services such as Zoom or GoToMeeting.

The question arises whether such pure virtual annual meetings comply with the law.

For Condominium Associations, Section 718.112(2)(d)1., Florida Statutes, provides that:  “An annual meeting of the unit owners must be held at the location provided in the association bylaws and, if the bylaws are silent as to the location, the meeting must be held within 45 miles of the condominium property.”

I do not know where the virtual meeting service provider servers are but I would bet they are not within 45 miles of a condominium property in Southwest Florida.  Therefore, we encourage clients to set their annual meeting place locally either at the condominium property or at the manager’s office and by virtual login and just let the members know that the only persons who will be permitted at the physical site are Directors and/or Management Personnel and that all members need to attend the meeting via the virtual link.

Instructions for attending via virtual link (or phone call in for those not able to connect by the virtual link) should be clearly set out in the notices of the annual meeting/annual election.

For Homeowners’ Associations, there is no such 45 mile requirement.  However, Section 720.306(2), Florida Statutes, provides that:  “The association shall hold a meeting of its members annually for the transaction of any and all proper business at a time, date, and place stated in, or fixed in accordance with, the bylaws.”

Most bylaws for Homeowners’ Associations are either silent or require the meeting to be held in the County were the neighborhood is located.

As long as one director or one manager is on their computer at the physical location, there should be no statutory deficiency is such virtual meetings. It is also good to have someone by the door at the physical location to provide any members, who may show up physically at the meeting, with the login information so that they can go back to their unit or home computer or phone to attend the meeting virtually or do so at a location other than the meeting room by their cell phone.