Can my association send notices electronically?
Editor’s Note: David G. Muller is an attorney with the law firm of Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Naples, Fort Myers and 11 other Florida cities. The firm focuses a substantial amount of its practice on condominium and homeowners association law. Send questions to Attorney Muller by email to dmuller@bplegal.com.
Q: I live in a large condominium association with over 300 units. Notice of all the membership meetings are still done the old-fashioned way by making copies and placing the notices in the mail to the owners. This seems like a big waste of time and money. What is required for associations to start noticing membership meetings electronically? K.C.
A: Florida community associations are permitted to send membership meeting notices and certain board meeting notices to the owners electronically if the association obtains the written consent of the subject owner. The association attorney can assist in preparing the applicable consent form, which will need to include the designated email address the owner wishes the notices to be sent to.
You are correct that taking this step can help save time and money. That being said, community associations must still send notices the old-fashioned way through the mail for any owner who does not give their consent. Hand delivery of the notice can also be an option but hand delivery does come with certain challenges and it is recommended to obtain a written receipt.
Also remember that there is a requirement to post these notices in a designated place within the condominium property, which must still be adhered to even if all owners have consented to receive meeting notices electronically.
Q: My condominium association board voted to do away with our smoking section at the pool, which was allowed for 16 years. The board made this change via an amendment to the rules. Is there a grandfather clause, as a smoking section was the attraction for myself and others to choose this community? A.S.
A: Several states (including Florida) have banned smoking in most public places. The gradual move toward smoke-free condos, and the extent of a board’s authority in this arena, is the source of much debate within the state.
The Florida Clean Indoor Air Act, found at Chapter 386 of the Florida Statutes, provides a uniform statewide code to keep public places and public areas reasonably free from tobacco smoke. The statute specifically regulates indoor "common areas," including indoor common elements of a condominium. The law does not apply to outdoor common areas (such as the pool area at your condominium, unless certain enclosure criteria are met).
A board’s rule-making authority is derived from the governing documents. Most condominium association governing documents do grant the board rule-making authority regarding the common elements. Assuming your board has this authority, and adopted the rule in a procedurally correct manner, the new rule will be found enforceable so long as it is reasonable.
While no Florida appellate court has yet directly tackled this issue, I personally feel that a rule banning smoking at the condominium swimming pools will be found to be reasonable. The ill-health affects of secondhand smoke are well established. Further, many nonsmokers are offended by secondhand smoke in their vicinity, even in an outside setting. Perhaps you could ask your board to establish an outdoor smoking area on part of the property where other residents would not typically go.
Although there are always exceptions for certain types of situations, the board is under no obligation to grandfather any owners or residents who previously used the smoking area at the pools.
Q: I manage a large homeowners association. We recently received a subpoena from a divorce attorney in Orlando asking for all of the association’s files related to a certain individual. The problem is we have no idea who this person is. We have run their name through our databases and no responsive documents have been found or located. Can we simply ignore this subpoena since we have no responsive documents and since the association isn’t part of the lawsuit? T.D.
A: No. The Florida Rules of Civil Procedure grant Florida attorneys the right to subpoena documents related to a lawsuit for which they are the attorney of record. If you fail to respond to the subpoena, you could be subject to court sanctions. You should forward the subpoena on to the association’s attorney for review and assistance. The association attorney can assist in responding (or objecting) to the subpoena by the stated deadline. Your association attorney may advise that a simple response of "no responsive documents" is all that is needed.
Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples (www.bplegal.com). The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this column does not create an attorney-client relationship between the reader and Becker & Poliakoff, P.A. or any of our attorneys.