“Board Authority to Lease Roof Space for Cellular Equipment” – News-Press
Q: A cellphone provider recently approached the board of directors at my condominium association with a proposal to lease part of the roof for installing cellular equipment. Does the board have the authority to lease the roof to the cellphone provider? (J.D., via e-mail)
A: The board of directors of a condominium association in Florida generally has the authority to lease portions of the common elements, such as the roof, to third parties, including a cellular service provider, unless the declaration of condominium provides otherwise.
The declaration may contain specific limitations or procedural requirements for leasing common elements. For example, some declarations require a certain percentage of unit owner approval before the board can lease any part of the common elements.
Further, the installation of cellular equipment on the roof may raise questions about whether the installation constitutes a material alteration or substantial addition to the common elements.
Section 718.113(2)(a) of the Florida Condominium Act provides that material alterations or substantial additions to the common elements must be approved in the manner provided for in the declaration, and if the declaration is silent, must be approved by seventy-five percent (75%) of the total voting interest of the association. Therefore, while the board of directors may have the authority to lease portions of the common elements, to the extent that the cellular service provider will be installing equipment on the roof, such installation may require the approval of the unit owners as a material alteration. This is an issue that should be reviewed by the association and its legal services provider before any agreement is executed.
While these leases are somewhat common, they do present a number of legal considerations that the association would need to address early in the process to avoid any potential pitfalls in moving forward with the lease.
Q: As a member of our condominium association, I have heard from several unit owners who live out of state and are concerned about participating in our upcoming board elections since they cannot attend in person; with the board considering online voting to address this, what are the proper steps we need to follow to implement online voting? (B.S., via e-mail)
A: Section 718.128 of the Florida Condominium Act permits an association to conduct elections and other unit owner votes using an internet-based online voting system, provided the unit owner consents to online voting either electronically or in writing and all statutory requirements are met. Rule 61B-23.00211, Florida Administrative Code, clarifies that “consent, in writing” includes consent given by email, but the email address used for this consent is not considered an official record unless the owner has previously agreed to receive notices by email. The statute also provides that a unit owner’s consent to online voting remains valid until the owner opts out according to procedures established by the association.
Before implementing an online voting system, the association must formally authorize its use through a board resolution. This resolution must inform unit owners of the opportunity to vote electronically, and the notice of the meeting where the vote will take place must include information about the online voting option.
Once the system is authorized, the association must select an online voting platform that can authenticate each unit owner’s identity and ensure the validity of each electronic vote. For board elections, the system must be able to permanently separate any identifying information from the ballot itself, so a specific ballot cannot be tied to a particular unit owner. The association must also confirm at least fourteen (14) days before the voting deadline that each unit owner’s device can successfully communicate with the online voting system.
The system must also provide each voter with a receipt that includes the specific vote cast, the date and time of submission, and the user identification. Unit owners who vote electronically are considered present for quorum purposes, but substantive votes may only be taken on issues specifically identified in the electronic vote when a quorum is established in this way.
Effective July 1, 2025, if at least twenty-five percent (25%) of the voting interests in the condominium petition the board to adopt a resolution for electronic voting, the board must hold a meeting within twenty-one (21) days of receiving the petition, provided the petition is received within one-hundred eighty (180) days of the last annual meeting.
If the association has not adopted online voting, it must designate an email address for receiving electronically transmitted ballots. Ballots submitted by email must include the unit owner’s unit number, first and last name (which serves as their signature), and a specific statement in large, capitalized font explaining that by submitting the ballot via email, the owner waives the secrecy of their ballot. Owners who do not wish to waive ballot secrecy may attend the in-person meeting to vote.
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.
