Q: It is my understanding that board meetings require paper posting of notice on the condominium property. However, our board does not always post notice saying that “they forgot.” What action can be taken to address a failure to post meeting notice as required? (M.G., via e-mail)
A: Board members have a fiduciary duty to each unit owner and should follow the law.
While many see the requirement for physical paper posting of notices to be an anachronism in the computer age, the statute still requires it. Chapter 718 of the Florida Statutes, the Florida Condominium Act, requires adequate notice of all board meetings (which must include all agenda items) to be posted conspicuously on the condominium property at least 48 continuous hours before the meeting, except in an emergency.
However, written notice of a board meeting at which a nonemergency special assessment, or an amendment to rules and regulations regarding unit use will be considered, must be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property at least 14 days before the meeting. It is also important to be aware that your condominium documents may include more stringent notice requirements. It is likewise important to note that not all condominium documents grant a board the authority to adopt rules regarding unit use or the authority to levy special assessments.
Unit owners may bring legal action against a condominium association, or any director who willfully or knowingly fails to comply with the condominium statute or the condominium documents. The prevailing party is entitled to recover reasonable attorneys’ fees. Obviously, this is not the most desirable method of addressing this problem, but it is an option.
Failure to post notice may invalidate action taken by the board and can be raised as a defense to collection of assessments. So, the association has an important business interest in following the law, setting aside the fact that the law should be followed anyway. There is also some case decision law on “ratifying” actions taken at improperly noticed board meetings, which is usually part of the mix when these issues turn into legal disputes.
As a final note, the law is basically the same for cooperatives under Chapter 719 of the Florida Statutes and homeowners’ associations governed by Chapter 720 of the Florida Statutes, although the Florida Homeowners’ Association Act does not contain a specific requirement for an agenda.
Q: Should the association keep minutes of meetings of closed board meetings with legal counsel? (A.C., via e-mail)
A: In my opinion, yes. The minutes should, however, be prepared or reviewed by the attorney who attended the meeting.
While these minutes become part of the association’s official records, neither the statute nor the appellate courts have addressed whether they are protected by the attorney-client privilege, and therefore not open to inspection by the members, nor available through discovery in litigation. In my view, the better legal argument is that they are so protected, otherwise the benefits of the privilege would be compromised.
The laws for condominiums, cooperative and homeowners’ associations contain an exemption from the general requirement that board meetings be “open” to the members, where the board is meeting with the association’s attorney with respect to “proposed or pending litigation.” If an owner is an opposing party in litigation against his or her association, it would seem illogical to argue that while the owner cannot attend the meeting, he or she can obtain the written documentation of the decision made at the meeting, which may for example include a dollar range for settlement negotiations.
Minutes in general, and particularly minutes of legal meetings, should be brief. As is often said, the purpose of minutes is to memorialize what was done, not what was said.
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.