Q: Our condominium association wants to go “paperless” as much as possible for our meetings and move to “virtual” meetings both for convenience and cost savings. Do you have any guidelines on what this involves? (S.R., via e-mail)
A: The relevant terms are often confused or used imprecisely. There are several distinct procedures that come into play. Roughly speaking, these are: electronic voting (or “E-Voting”); electronic notice (or “E-Notice”); remote participation; and absentee voting.
E-Voting is where someone logs onto a website and can vote at an association meeting on whatever business is before the meeting, such as amendments or the election of directors. Under the statute, those who participate by E-Voting are deemed to be “present” at the meeting. The board of directors has the authority to implement E-Voting. The board must adopt a resolution with certain legal formalities. Notice of the board meeting where the resolution will be adopted must be preceded by 14 days posted and delivered notice. The software used by the association’s vendor must meet certain minimal standards, including safeguarding secrecy in votes regarding the election of directors.
E-Notice is when the association gives unit owners “official notices” (such as notice of member meetings and notice of board meetings where personal notice is required) by e-mail rather than regular U.S. Mail. This is also a board prerogative to implement. There are fewer procedural formalities required than is the case of adoption of an E-Voting resolution. Owners must consent in writing to receive official e-mail notices and be given the right to revoke that consent.
Remote participation is where a unit owner is allowed to be considered “present in person” at an association meeting through Zoom, Teams, or a similar remote meeting hosting platform. The board can also authorize this through a resolution that follows the mandates of the corporate statute. Owners may voice vote remotely, except in the election of directors or an item for which the condominium documents require written approval of an item. Contrary to popular belief, “remote only” meetings are not currently recognized for association except in emergency situations. I do not believe that an election of directors can be done remotely.
For general purposes in a condominium, absentee voting is someone sending in a proxy by e-mail, attachment. This is expressly permitted by the statute, regardless of any bylaw provisions to the contrary. Voting for directors cannot be done using a scanned/e-mailed ballot.
Q: I am trying to determine where the legal obligation of a condominium association board of directors is to create the minutes of the board meetings is contained. (L.S., via e-mail)
A: There is no specific language in the Florida Condominium Act stating that the board of directors must prepare minutes for each board meeting. However, reading the various provisions of the statute together, it is my interpretation that a condominium association must create and keep the minutes of board meetings.
Section 718.111(1)(b) of the Act provides that the vote or abstention of each board member present at a board meeting shall be recorded in the minutes. For a vote or abstention to be recorded in the minutes, there must be minutes.
Additionally, Section 718.111(12) of the Act discusses the official records that must be kept by an association. Subparagraph 718.111(12)(a)6 includes the books that contain minutes of all board meetings, which are required to be kept from the association’s inception. Since a minute book is a required official record, it seems clear that minutes need to be taken for the book to exist.
Interestingly, Section 617.1601 of the Florida Corporation Not for Profit Act states that corporations shall keep minutes of its membership and board meetings. However, condominium associations are specifically exempted from this statute. That usually occurs when the Legislature concludes that an issue is sufficiently regulated by the condominium statute to be inappropriate for inclusion in the general corporate statute.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.