Q: Can the board of an association conduct business by e-mail vote between meetings, and then ratify the votes at the next board meeting? (A.Z., via e-mail)
A: No.
Section 718.112(2)(c) of the Florida Condominium Act and Section 720.303(2)(a) of the Florida Homeowners’ Association Act, both state that directors may communicate with each other regarding association business by e-mail, but cannot conduct votes in that medium.
There are some nuances that come into play. Many day-to-day decisions of an association are vested in the officers or management. Sometimes, officers or management may want to have the other directors’ views and opinions on a situation and can poll them for their opinion or support by e-mail. However, if an action requires board approval, or is otherwise considered a board vote, it cannot be undertaken by e-mail.
Rather, decisions of the board must be made at duly noticed meetings of the board. Due notice occurs when each director is given personal notice of the meeting as provided in the bylaws. This notice can usually be given by e-mail. Additionally, notice must be provided to the owners.
In general, notice to owners is accomplished by posting notice of the board meeting and an agenda 48 hours in advance of the meeting in a conspicuous location in the community. Certain meetings require 14 days posted and actual notice to owners.
Owners are entitled to attend board meetings and speak to designated agenda items. Board meetings regarding personnel matters, and meetings with association legal counsel to discuss pending or proposed litigation, may be closed to owner attendance.
Board members may attend board meetings “remotely,” either by audio conference call or video platform. The location of the meeting must contain a device where each person in the room can hear the director who is participating remotely, and the remote director can hear everyone in the meeting room. Owners do not have a legal right to attend board meetings remotely, although the board may permit owners to do so.
“Remote-only” meetings are technically only permitted in state of emergency situations, though I suspect the law will be changed to permit such meetings as a general matter. If remote only meetings are properly held, and unless the meeting is closed for one of the reasons discussed above, then all owners should be given the right to observe and speak at the meeting remotely.
Q: Like many condominiums in the area, we were badly damaged by Hurricane Ian. Some members of our condominium have stated we should simply sell the property to a developer. Is that even an option for a condominium association? (G.M., via e-mail)
A: Possibly. Often when people talk about a condominium association “selling out” to a developer, what they are really discussing is “terminating” the condominium.
The declaration of condominium should contain a provision that governs termination. Many older declarations require that all unit owners must approve termination. Additionally, the Florida Condominium Act extensively regulates the process for terminating the condominium.
The statute provides for termination under several different circumstances, including when it would be “economic waste or impossibility” to continue with the condominium. The statute also provides for “optional termination.” Generally, a condominium can be terminated with approval of at least 80 percent of the total voting interests in the condominium. However, under certain circumstances, no more than 5 percent of the total voting interests of the condominium can vote to reject the plan of termination.
The date when a declaration of condominium was recorded, whether it incorporates future changes to the statute, and the amendment provisions of the declaration, all play a role in the required vote to terminate. The process is complex and obviously consequential. The first step for any association considering this option is to obtain a legal opinion from a qualified attorney on the required votes and steps to terminate the particular condominium.
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.