“Owners Have the Right to Attend HOA Board Meetings” – News-Press
Q: When a homeowners’ association holds an open board meeting, do they have the right to restrict that meeting to virtual attendance by homeowners, or should the meeting be open to homeowners to attend in person as well? (P.T., via e-mail)
A: Section 720.303(2)(b) of the Florida Homeowners’ Association Act provides members of the association the right to attend meetings of the board and the right to speak with reference to all designated items. Section 720.303(2)(a) of the statute requires that board meetings be held at a location that is accessible to a physically handicapped person if requested by a physically handicapped person who has a right to attend the meeting.
Therefore, the board must allow owners to attend open board meetings in person, at the physical location of the meeting. There is no legal requirement to allow owners to attend or observe board meetings remotely, even if some of the directors are participating in that fashion. However, many (perhaps most) associations have taken advantage of the recent technological advances in remote meeting technology to allow owners who wish to observe meetings by logging onto the remote hosting platform to do so.
Q: Can our HOA permit owners to use our common facilities for private functions? (J.M., via e-mail)
A: Section 720.304(1) of the Florida Homeowners’ Association Act states that all common areas and recreational facilities serving a homeowners’ association must be available to parcel owners and their invited guests for their intended use. This right is subject to reasonable rules and regulations adopted by the authority responsible for operating these areas, typically the board of directors. Limitations enacted by a board must be reasonable.
What constitutes “reasonable” regulations is context-dependent and would depend on the provisions of the other governing documents. In my experience, most associations have a process where owners can reserve private use of certain amenities, such as a clubhouse. While I am not aware of any appellate court case that has addressed the issue, it would be my guess that a rule that allows for private use in a non-discriminatory manner that did not negate the purpose for which the facility was created would be upheld as reasonable.
Q: A process server had trouble getting into our gated condominium community to serve legal papers. They claimed we are violating Florida law. What is the rule on this? (V.I., via e-mail)
A: Section 48.031(7) of the Florida Statutes requires that gated residential communities, including condominium associations, allow unannounced entry to process servers attempting to serve a defendant or witness either residing or known to be within the community.
I would recommend that your board consult with the association’s attorney to review the particular access protocols for your community to determine that compliance with the statute is being met.
Q: What distinguishes directors elected by unit owners from those appointed by a developer? (A.F., via e-mail)
A: Under Section 718.301(6) of the Florida Condominium Act, actions taken by developer-appointed directors and officers before turnover of control of the association are considered actions taken by the developer. Section 718.303(1)(c) of the statute states that developer-appointed directors can be held personally liable for certain actions or inactions.
For example, a 1976 Florida appeals court ruled that developer-appointed directors were personally liable for contracting with a corporation in which they had a personal interest, without obtaining the association’s approval. In 1977 and 1987 cases, developer-appointed directors were held liable for failing to collect assessments on units owned by the developer.
Other case laws have sought to limit the extent of personal liability for developer-appointees to the association board, but it is safe to say they have much greater legal liability than volunteer directors elected by the unit owners.
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.
