Q: Now that we are no longer under the COVID state of emergency in Florida, can a homeowners’ association hold “Zoom only” board meetings or are they required to have an announced meeting venue where owners can attend in person? (C.J., via e-mail)
A: While your question is simple enough, the correct legal answer isn’t.
As you note, Florida’s statewide COVID-19 State of Emergency expired on June 26, 2021, after eight extensions. Section 720.316 of the Florida Homeowners’ Association Act was enacted July 1, 2021.
The new law states that in response to damage or injury anticipated in the connection with an “emergency” for which a state of emergency has been declared pursuant, the association may conduct board meetings, committee meetings, and membership meetings, in whole or in part, by telephone or real-time video conferencing. The authority granted by this law is limited to “that time reasonably necessary to protect the health, safety, and welfare of the association and the parcel owners and their family members, tenants, guests…and to mitigate further damage, injury, or contagion…”
An association can argue that the statute grants the authority to hold remote-only meetings even after a State of Emergency ends. However, the new statute is far from a model of clarity on that point. Unless current guidelines from the CDC, the Florida Department of Health, or local health agencies ban in-person gatherings, it seems difficult to argue that doing so is reasonably necessary. However, this law is too new to have been the subject of any test cases being decided in the appellate courts.
To add a bit more spice to the soup, these recommendations change constantly depending on the current level of community spread, new variants, and unfortunately, politics. As I wrote in last week’s column, I predict we are heading into the second or third major transformational phase of the 60-year history of community association laws in Florida. As I also noted, I believe the realities of current technology will be large part of the focus.
People have become accustomed to remote-only meetings, and in most cases, the right to meaningfully participate is not impinged. Some would argue that participation has increased due to convenience. I think the law should be changed to allow remote-only meetings for associations regardless of a state of emergency, so long as owners’ rights to observe and participate are honored, even if there is no emergency reason to do so. What do you think?
Q: I own two lots in my homeowners’ association. One lot has my house, and the other lot is a vacant lot next door. I pay two separate fees to the association. My neighbor has requested that I sell half of the vacant lot next to him so we each have a lot and half. We understand that we would need to address this with the County. We want to know if we were to split the vacant lot in half, would this eliminate the requirement to pay the association assessments for that lot? (D.F., via e-mail)
A: Probably not. This would be controlled by the association’s governing documents. Even if the County were to consider each half lot part of the adjoining lot (i.e., a lot combination) for tax and/or zoning purposes, this would not change how the lot is characterized for purposes of the association assessments and voting rights.
This type of change would likely require an amendment to the declaration of covenants. Section 720.306(1)(c) of the Florida Homeowners’ Association Act states that any amendment which increases the proportion or percentage by which a parcel pays in the share of common expenses of the association requires the consent of all lot owners. Assuming this law applies based on the date and language of your declaration these three lots could not be reduced to two lots for assessment and voting purposes unless all lot owners agreed, and all appropriate legal procedures are followed.
I have seen declarations which recognize half lots, and the owner of the adjoining lot often has 1.5 votes and pays 1.5 times the normal assessment. This is a matter which would require the cooperation of the association, likely a declaration amendment, and review by the association’s legal counsel.
Joseph E. Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.