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Find Blog Articles for Florida’s Condo, HOA and the Management Industry.
By Eric Glazer, Esq.
Prior to July 1st, 2021 if a condominium dispute arose, the parties were forced to first arbitrate the matter before the Department of Business and Professional Regulation. The law has now changed and reads as follows:
(a) Before the institution of court litigation, a party to a dispute, other than an election or recall dispute, shall either petition the division for nonbinding arbitration or initiate presuit mediation.
As you can see, now the plaintiff has a choice to start the matter in arbitration or mediation. So which one do you choose?
If you decide to go to arbitration, your case will be assigned to an arbitrator in Tallahassee. The arbitrator will read the briefs, hold hearings and ultimately enter an order. Someone will win and someone will lose. The loser will pay the winner’s attorney’s fees. The loser can then file in court for a trial de novo. In effect, it’s an appeal of the arbitrator’s order and the case starts all over again. The winner of the trial de novo gets their attorney’s fees and costs from the loser, including the arbitration fees.
So….the risk in going to arbitration is that if you lose, you may wind up not only paying your lawyer, but the other side’s lawyer too.
The alternative is to mediate the dispute. I have been certified since 2007 as a Circuit Court mediator. I truly enjoy mediating cases and helping the parties resolve their disputes. At mediation, the parties appear with their attorneys. The mediator explains that today is a good day to settle the case on mutually agreeable terms, rather than leave your fate up to a judge or jury. If an agreement is reached, it is enforceable in a court of law. The mediator allows the parties to make opening statements, then separates the parties and goes back and forth trying to achieve a settlement.
There is very little risk in going to mediation. There is no “winner” or “loser” at mediation, so neither party has to worry about paying the other side’s attorney’s fees. The parties split the cost of the mediator.
When I act as a mediator, I explain to the parties that neither side will get everything they want today, and that if at the end of the day both parties feel a little miserable, I probably achieved a fair result.
Tags: Board of Directors, Condo and HOA Laws, Elections, Management News
The post-pandemic return to work is fraught with challenges – from ensuring the physical and mental well-being of employees and the safety of the actual workplace to attracting and retaining an empowered workforce who successfully maintained productivity without coming into the office for an entire year. Becker Shareholder and employment lawyer Jamie Dokovna invited Becker Managing Shareholder Gary C. Rosen and Coworks International Founder & President Shirley Arline to discuss the future of work and how business leaders can help protect both their people and profitability.
“We all need to recognize that we are embarking upon an experiment, and we have to be openminded about the prospect of adjustments in order to do what’s right for our people and our organization,” said Rosen. “It is critical that whatever any organization does [traditional, hybrid, or remote-only], it needs to be organic and natural to that organization.”
A recent survey¹ showed that 70% of all employees would like companies to normalize working from home and include it as part of a work-week that also featured a few traditional 9-5 in-the-office days. In the same survey, 20% of the responders said they’d be happy never coming back to the office.
“There are still quite a few apprehensions about how to manage [the return to work] in a way that allows employees to feel safe and comfortable,” said Arline. “There are genuine fears among employers and employees about potential exposure; the need for flexibility becomes overriding.”
While the EEOC has declared mandatory vaccination policies permissible (with exemptions being made for religious reasons or chronic health issues)², many companies are uncomfortable with that approach, opting instead to offer incentives – cash prizes for those who prove their vaccination, additional paid time off to get vaccinated – and to promote the value of vaccinations through education and anecdotal evidence provided by COVID-19 survivors or families of those who succumbed to the disease.
“We don’t want to lose good employees,” said Rosen. “We want to be responsive and flexible, but, as a business, we need to have a policy in place that people see implemented uniformly.” Arline continued, “Employers are trying to protect employees from contracting COVID and from other employees who do not want to be vaccinated.”
But safety of the workplace is not the only priority for employers.
“There is a lot of concern about the social and psychological adjustment of employees who have been out for quite a while,” said Arline. “We’ve had a significant increase in requests for EAPs to deal with the mental health impact of the pandemic.”
EAPs, employee assistance programs, are work-based intervention options designed to assist employees in resolving personal problems that may be adversely affecting the employee’s performance. EAPs traditionally assist workers with issues like alcohol or substance abuse; however, most now cover a broad range of issues such as child or elder care, relationship challenges, financial or legal problems, wellness matters and traumatic events like workplace violence. Programs are delivered at no cost to employees by stand-alone EAP vendors or providers who are part of comprehensive health insurance plans.³
“At the beginning of the pandemic, we had some employees who experienced acute stress, and I am very thankful that they reached out to our HR department,” said Rosen. “Sometimes small problems, if left unattended, can become larger issues and then migrate to crisis proportion. [Becker] does its best to provide an outlet for people to speak to a psychologist or mental health professional with no stigma attached.”
In addition to physical and mental health concerns, employers are also facing disruptions in recruiting and retention of employees.
“[Recruiting] has become a big challenge for employers,” said Arline. “Candidates are asking about the COVID protocols in place, setting very specific terms under which they will consider employment with an organization. I’ve gotten complaints from employers about the fact that they are losing control of the recruiting process and it’s very much in the hands of the candidates.”
The 2020 lockdown has also changed the rules of retention, since that year provided employees time to reflect on the direction of their career and review their professional goals. Many have made the decision to choose a completely different field – a risk that most would not have considered pre-pandemic – or leave the workforce altogether. Pundits have predicted a ‘turnover tsunami’ for the end of 2021, and all businesses are evaluating how to avoid losing quality employees by striking the right balance between a flexible workday and a guaranteed work product or service.⁴
“There isn’t a playbook for the pandemic,” said Dokovna. “Nobody is ahead of anyone else; we’re all figuring this out in real time.”
Tags: Condo and HOA, Management News, Members Articles
As one of the first law firms in Florida to address the legal issues stemming from sea level rise, Becker is excited to announce its interdisciplinary Sea Level Rise Advisory Team which includes experienced and knowledgeable lawyers ready to assist our clients in preparing for the future.
Our multifaceted team is comprised of specialists at the forefront of this emerging area of environmental law. This includes attorneys and government relations professionals across our Land Use & Zoning, Government Law & Lobbying, Community Association, Real Estate, and Construction Law & Litigation practices.
Led by Ellyn Bogdanoff, the team provides a comprehensive range of services to address flooding and other impacts of sea level rise. In 2021, for example, Becker’s Government Law & Lobbying Practice was instrumental in helping to secure the passage of Florida’s “Always Ready” legislation which will provide more than $100 million every year to help Florida communities combat the effects of rising sea levels.
Flooding due to sea level rise is and will continue to be a big challenge, not just for those living on South Florida’s waterfront, but across the state. Local governments are realizing the significant impact of flooding and are combatting sea level rise by creating resiliency task forces and taking action to revise land use planning and zoning requirements and make upgrades to their stormwater infrastructure and sewage systems.
But it’s not only local officials that must have a plan to respond to rising seas, landowners, developers, condominium and homeowner associations, and everyone in between, must also be prepared for the impacts posed by sea level rise, and develop strategies to prepare their properties accordingly.
Becker’s Sea Level Rise Advisory Team is prepared to help clients mitigate damages from sea level rise, evaluate options to prepare for the short and long-term, and develop financially feasible adaptation strategies. To learn more, please visit FloridaRisingSea.com.
Tags: Board of Directors, Management News
Broward Condo & HOA Expo – Tuesday, October 5, 2021 Property Management Expo & Seminars Seminars: 9:00 am – 4:45 pm Exhibits: 10:30 am – 3:00 pm Sign up for the networking and educational event of the year! Get face-time with the industry experts, browse the latest products and services and learn how to save thousands on the management and maintenance of your condo or HOA. Registration is FREE for association managers, board members. Don’t delay!
Orlando Condo & HOA Expo – Wednesday, October 6, 2021 Property Management Expo & Seminars Orange County Convention Center-West Bldg Wednesday, October 6, 2021 Seminars 9:00 am – 4:30 pm Exhibits 10:30 am-3:00 pm Sign up for the networking and educational event of the year! Get face-time with the industry experts, browse the latest products and services and learn how to save thousands on the management and maintenance of your condo or HOA. Registration is FREE for association managers, and board members. Don’t delay!
Naples Condo & HOA Expo – Friday, October 8, 2021 Condo & HOA Expo & Seminars New Hope Event Center 7675 Davis Blvd. Naples, FL 34104 October 8th, 2021 Seminars 9:00 am – 4:30 pm Exhibits 10:30 am – 3:00 pm Sign up for the networking and educational event of the year! Get face-time with the industry experts, browse the latest products and services and learn how to save thousands of the management and maintenance of your condo or HOA. Registration is FREE for association managers, board members. Don’t delay!
Miami Beach Condo & HOA Expo – Tuesday, October 12, 2021 Property Management Expo & Seminars Miami Beach Convention Center Tuesday, October 12, 2021 Seminars: 9:00 am – 4:30 pm Exhibits: 10:30 am – 3:00 pm Sign up for the networking and educational event of the year! Get face-time with the industry experts, browse the latest products and services and learn how to save thousands of the management and maintenance of your condo or HOA. Registration is FREE for association managers, board members. Don’t delay!
Palm Beach Condo & HOA Expo – Thursday, October 14, 2021 Join us Thursday, October 14, 2021! Seminars: 9:00 am – 4:45 pm Exhibits: 10:30 am – 3:00 pm For one day only, the Palm Beach Convention Center will be packed with the latest products and services as well as an array of industry experts. It’s an unparalleled opportunity to make valuable connections and speak directly with local and national experts about the topics that are relevant to you and your property. Get legal insights, financial advice, communication tips, proactive management solutions and much more from some of the region’s top professionals. This one-day event will also give you a sneak peek at the latest design trends gracing today’s most prestigious developments, plus innovations in building and remodeling and the newest energy efficiency options. Register Today
Tampa Condo & HOA Expo – Thursday, October 28, 2021 Condo, HOA and Property Management Expo Tampa Convention Center Thursday, October 28th, 2021 Seminars: 9:00 am – 4:45 pm Exhibits: 10:30 am – 3:00 pm Sign up for the networking and educational event of the year! Get face-time with industry experts, browse the latest products and services and learn how to save thousands on the management and maintenance of your condo or HOA. It’s the ONLY event to bring everything you need under one convenient roof for a single, information-packed day. Registration is FREE for community association managers, board members, board presidents, active HOA members and industry professionals. Don’t delay… register for this one-of-a-kind event today! more >
Changes in your life or lifestyle mean you should update your auto, home and umbrella insurance coverage. You may find you can save money by dropping unneeded coverage (say, for a child who has left for college) or that you need extra insurance (say, for heirloom jewelry you’ve just inherited)
Renovations to your main home or a new building on your property (say, a gazebo) can mean you’re underinsured and need to increase the value of the structures coverage on your home policy. This is especially important if you’ve put in a lot of money into renovation, or expanded your square footage
You need a policy review if you’ve bought (or inherited) any jewelry, fine arts, furs or collectibles such as wines, instruments, coins, guns or cameras. These are items you may want to list separately, or it may be cheaper to include them under a “collectibles rider.” You also need revisions if your collectibles have appreciated in value.
It’s hard to believe, but people forget to take old cars off their policies when they trade in one car for another. If you have any motorized toys, such as all-terrain vehicles, boats, or jet skis, make sure that your underlying auto or home policies, as well as your umbrella, cover your use of these.
If your teenager starts driving or you let an au pair or nanny drive your car, you must add him or her to your policy. Before you buy a car specifically for this new driver’s use, check the impact on your premiums. Some carriers will let you assign a young driver to a clunker, while others assume a young driver is using most valuable car in your garage, making it cheaper not to add another car.
If your kids go to college out of town, call your auto insurer–they’ll still be on your policy, but the policy’s cost should go down. If they move out permanently, make sure to take them off your auto policy.
If you transfer ownership of your house, artwork, a car or any other asset into the name of a trust, limited liability company or family limited partnership, you need to add the entity as an additional insured on your policy. If you’ve transferred the home you live in to a trust for estate planning purposes, you want both your name and the name of the trust on the policy.
No matter what’s going on in your life, you should review your insurance coverage at least once a year. The easiest time to do this is when the renewal notices come. Your insurer (or agent) will notify you of changes or “amendments” to your policies, for better or worse. Read that new fine print, as it may mean you need to take action.
DID YOU KNOW? Your homeowner’s insurance policy doesn’t cover flood damage. That requires a separate flood policy. Your homeowner’s policy could, however, cover other damage that is water related.
You visit your doctor for a yearly checkup… why wouldn’t you do the same with your insurance agent? An annual review of your insurance policies is recommended because your financial situation can change year to year. A review doesn’t have to be time consuming like most people think. If you haven’t been getting a yearly review, it makes sense to start now. There is little to be gained by carrying the wrong types or amounts of insurance and so much, potentially, to be lost!
Tags: Building Maintenance, Florida Rising Magazine, Insurance, Management News
This year’s large community association omnibus bill will likely become law. This bill, which bears an effective date of July 1, 2021, contains changes which will impact condominiums, cooperatives and HOAs. At more than 100 pages, we will discuss only some of those changes in today’s CALL Alert. This bill, along with all the others CALL has been tracking throughout the 2021 Legislative Session, will be summarized in our year-end Legislative Guidebook.
Several of the Condominium changes include:
Several of the Cooperative changes include:
Several of the HOA changes include:
The foregoing are just some of the changes this bill creates for your association operations. Florida’s Legislative Session is scheduled to end on April 30th. Stay tuned for additional CALL Alerts and as promised, our comprehensive Legislative Guidebook.
Tags: Condo and HOA, Condo and HOA Laws
Initial Interim Lessons Learned From This Tragedy
Author’s note: The devastating tragedy in Surfside shocked and saddened all of us at Kaye Bender Rembaum. The following article was initially written in late June, shortly after the tragic Champlain Towers collapse occurred, for initial publication in the August edition of the Florida Communtiy Association Journal. Since that time, and just the other day, the City of Boca Raton has promulgated required building re-certifications similar to those in effect for Broward and Miami-Dade Counties. Other cities and counties are similarly preparing to do so. In addition, the Florida state legislature will likely be considering amendments to Chapter 718, the Condominimium Act, during its 2022 legislative session an effort to help prevent similar tragedies.
Just after midnight on Thursday, June 24, 2021, tragedy struck Surfside, Florida, when 55 of 136 units of the 12-story Champlain Towers South Condominium tragically crumbled to the ground. Just prior, a sleepless sixth floor owner notices a two-finger-wide separation in her drywall and, fearing the worst, scrambles downstairs as the building begins to collapse around her. Miraculously, she barely escapes. So many others were not as fortunate. Today, as this article is being written on June 27, 2021, sadly there are nine confirmed dead and over 150 persons still listed as unaccounted for. (Author’s note: it was later confirmed that this tragedy was responsible for 98 deaths)
By way of background, a prior building collapse in 1973 led Miami-Dade and Broward Counties to institute a city ordinance requiring a 40-year residential building recertification. The 40-year-recertification requirement is the absolute maximum period of time for the association to inspect the building for structural, electrical, and other critical component failure posing a threat to life safety. Champlain Towers South, built in 1981, was in the process of complying with its building recertification when disaster struck. Likely, months from now the cause will be identified. Do not be surprised if it is discovered that there were multiple causes leading to a perfect storm type of event.
When concrete is subjected to moisture, it causes the steel rebar to rust, which causes further expansion of the concrete surrounding the rebar, which ultimately, if not treated, leads to failure. This is commonly referred to as “spalling.” In addition, when concrete is exposed to moisture, it causes the concrete to separate into its constituent parts, and it will leach lime [calcium-containing inorganics]. Many condominium balconies experience concrete spalling and require repair. So, too, do the support columns and other parts of the foundation responsible to bear and pass the building load on to other structural components. What we know so far, from multiple sources, follows:
An engineering report issued on October 8, 2018, by Morabito Consultants to Champlain Towers South Condominium Association, Inc., concluded in its Structural Field Survey Report that:
“[T]he waterproofing below the pool deck and entrance drive… is beyond its useful life and therefore it must be completely removed and replaced. The failed waterproofing is causing major structural damage to the concrete structural slab below these areas. Failure to replace the waterproofing in the near future will cause the extent of the concrete deterioration to expand exponentially… The main issue in this building structure is that the entrance drive, pool deck and planter waterproofing is laid on a flat surface. Since the reinforced concrete slab is not sloped to drain, the water sits on the waterproofing until it evaporates. This is a major error in the development of the original contract documents prepared by the [initial architects and engineers]… It is important to note that the replacement of the existing deck waterproofing will be extremely expensive as removal of the concrete topping slab to gain access to the waterproofing membrane will take time, be disruptive, and create a major disturbance to the occupants of this condominium building. Please note that the installation of deck waterproofing on a flat structure is a systemic issue for this building structure… Regarding the parking garage consultant’s review revealed signs of distress/fatigue as described below: abundant cracking and spalling of varying degrees was observed in the concrete columns, beams, and walls. Several sizable spalls were noted in both the top side of the entrance drive ramp and the underside of the pool/entrance drive/planter slabs, which included instances with exposed deteriorating rebar. Though some of the damage is minor, most of the concrete deterioration needs to be repaired in a timely fashion… Morabito Consultants is convinced that previously installed epoxy injection repairs were ineffective in properly repairing the existing cracked and spalled concrete slabs.”
(The entire 2018 Morabito Consultants report can be found at kbrlegal.com. Click “resources” at top of the page, then click “links” from the dropdown menu.)
Reports from local and national news indicated the following information. The swimming pool built atop a parking garage was leaking for an unknown period of time into the garage area below. Ocean water often intruded into the below-grade parking structure. At least one owner on the ninth floor was experiencing repeated pipe leaks. A report from the 1990s indicated the building was sinking approximately two millimeters per year. Significant roof repairs were underway for at least one month prior to the collapse. Lime was leaching out of the concrete deck causing damage to the cars in the parking garage below. Just south of the Champlain Towers South Condominium, a new building was being constructed that caused residents of the Champlain Towers South Condominium to complain about the constant shaking of their condominium building caused by blasting and digging activity. The concrete waterproofing associated with the foundation was failing as noted in the 2018 engineering report. Naturally, all of this combined could eventually lead to a weakened overall support structure.
Based on this information, ask yourself this important question: Was the Champlain Towers South Condominium collapse foreseeable? While some people, most especially with the benefit of hindsight, may believe that to be the case, bear in mind that there are also reports that the board had meetings with City of Surfside officials after the 2018 Morabito Consultants report was issued. If so, this may be very telling and bear on the board’s decision-making process. Details of such meetings are not presently known. Are there other engineering reports not yet discovered that bear on this issue? All of this may be very telling and bear on the board’s decision-making process. In any event, it is too early to reach conclusions.
Notwithstanding this horrible tragedy, there are interim lessons that can be gleaned from this disaster that every board member and manager of a high-rise condominium should heed, as follows:
Oddly, Florida Statutes have three significant failures that could help prevent a residential building collapse similar to the Champlain Towers South Condominium.
Regarding reserves, §718.112 (2)(f)(2), Florida Statutes (2020), provides, in relevant part, that:
In addition to annual operating expenses, the budget must include reserve accounts for capital expenditures and deferred maintenance. These accounts must include, but are not limited to, roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. The amount to be reserved must be computed using a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item. The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item caused by deferred maintenance. [Emphasis added.]
Remember, too, the board is absolutely required to pass the budget each year with reserves fully funded. Only then can the board decide to present to the owners the opportunity to waive or reduce reserves. Ask yourself, are our condominium association’s reserves properly funded?
As a result of this horrific tragedy, the 2022 Florida Legislature should consider requiring a recertification engineering report for all high-rise residential condominiums every 30 years or so and should require all community associations to update the reserve schedules at least once every five years.
Also remember that each board member should exercise his or her own individual reasonable business judgment when rendering decisions, except for the purchase of insurance, where the much higher standard of “best efforts” is applied as required by §718.111(11), Florida Statutes (2020). With the reasonable business judgment standard in mind, ignoring advice of engineers and other requisite professionals could be considered by others to be negligent or even rise to a reckless act or an omission conducted with bad faith, with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, any one of which can lead to exposure to liability. But, if the association received two different reports where the opinions drastically differ, then in that situation, each board member should use his or her reasonable business judgment to decide which report should be relied upon. The fact the board chose to follow one expert’s guidance over the other, whose guidance turned out in the end to be wrong, is not too likely to result in an award for damages as a result of legal challenge.
If you live in a high-rise condominium and are fearful of collapse due to the Champlain Towers South Condominium tragedy, please remember that this building’s failure was certainly not an everyday occurrence and is best described, for the time being, as a tragic anomaly.
Tags: Law and Legal, Management News
No doubt some changes are on the way for condominiums as a result of the Surfside tragedy. The changes are long overdue. Here’s another long overdue change that is necessary..the condominium insurance statutes.
Suppose I told you that under Florida law, there is no absolute requirement that your condominium association insure the building(s). Sounds crazy right? Yet, here is what the law actually says:
d) An association controlled by unit owners operating as a residential condominium shall use its best efforts to obtain and maintain adequate property insurance to protect the association, the association property, the common elements, and the condominium property that must be insured by the association pursuant to this subsection.
What in the world does “best efforts” mean? Does it mean that “We made a few calls…..the premiums were too high…..so we forgot about getting insurance?” Is that using best efforts? Have you ever read such a contradictory statute? On the one hand it says the board must use its best efforts. On the other hand, the same statute says that the condominium property “must be insured.” Which is it?
Think for a second if Champlain Towers was not insured? The very thought of it sounds impossible, but it isn’t.
But wait…..it gets worse. Even if the property is insured the statute says:
The coverage must exclude all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Such property and any insurance thereupon is the responsibility of the unit owner.
So, let’s say your condominium property is insured, but you did not purchase a separate HO-6 policy for your unit. All you get back is your four walls. That’s right, basically a shell.
What about flood insurance? Is that mandatory in Florida for your condominium? No, it isn’t. The association “may” purchase it.
Just to make things crystal clear for our esteemed legislators, at the moment there is absolutely no requirement to fund reserve accounts so that the money is there should major life threatening repairs become necessary. And to make matters worse, if a tragedy does befall the property and the owners, there’s not even a requirement that the building was to be insured.
This would almost be comical if it weren’t so sad. We live in a state that:
1. Every year gets hit with tropical storms and hurricanes;
2. Suffers sinkhole collapses;
3. Has thousands of buildings lining our coasts and the buildings take a beating from the salt water;
4. Does not require unit owners in a condominium to put away reserve funds should major repairs be necessary
5. Does not require associations to purchase insurance, but only use their “best efforts” which is undefined;
6. Is home to more senior citizens on fixed incomes than almost any other state in the country.
You do the math. When the special assessments start coming as a result of massive repairs that are required on our aging buildings, associations will look to save money elsewhere. Yes, many boards believe it or not will take the position that insurance is not necessary, or that despite their “best efforts” it is simply unaffordable. I have met boards like that already.
In the upcoming legislative session, The Florida Legislature has a real tough job on their hands. Passing laws that reflect the true cost of actually living in a condominium, and no longer giving unit owners and board members enough rope to hang themselves with.
The “state of emergency” that had been imposed by Governor DeSantis in light of the COVID-19 pandemic expired on June 26, 2021. As a result, the “emergency powers” given to condominium, cooperatives, and homeowners’ associations in Sections 718.1265, 719.128, and 720.316, Florida Statutes, respectively, are no longer in effect. The emergency powers that were in effect during the COVID-19 state of emergency included conducting board meetings and membership meetings with notice given as is practicable, but did not specifically give associations the authority to conduct meetings remotely. Nevertheless, many associations did hold meetings remotely in an effort to slow the spread of the virus and to protect its residents and employees. (NOTE: The emergency powers statutes were amended effective July 1, 2021, and now specifically provide that during a declared state of emergency, the association may conduct board meetings, committee meetings, elections, and membership meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication.)
Now that the state of emergency has expired, what meetings can associations hold remotely, either in whole or in part?
With regard to board meetings, the statutes specifically address the board members’ participation by telephone or videoconferencing, but do not address whether owners may participate remotely or whether the owners can be required to participate remotely. The statutes do provide that meetings of the board must be “open” to all owners. If your board wishes to hold remote board meetings, the board can allow owners to also participate remotely in the same manner as the board members by giving the owners the call-in number or videoconference link. The law is unsettled as to whether a remote only meeting is valid, as some owners may not have the capability or desire to participate remotely.
With regard to owner meetings, the statute governing corporations not-for-profit, Section 617.0721(3), Florida Statutes, provides that owners and proxyholders may participate remotely and can also vote remotely if authorized by the board of directors, and subject to such guidelines and procedures as the board may adopt. But as with Board meetings, none of the statutes indicate whether “remote only” meetings, which require the owners to participate remotely, are valid. (Note that this type of “remote voting” contemplated by Section 617.0721(3) is different than the electronic/online voting that is permitted by Sections 718.128, 719.129, and 720.317, Florida Statutes).
For owner meetings at which an election will be held, the issue is more difficult. The Condominium and Cooperative Acts require owners to vote by “secret ballot” and many homeowners’ associations governing documents also have a secret ballot requirement. In that case, an owner participating remotely would be unable to vote on the election of directors unless the owner voted in advance of the meeting or unless the association had authorized electronic/online voting pursuant to Sections 718.128, 719.129, and 720.317, Florida Statutes). Further, in condominium and cooperative associations, the “election committee” that opens and counts the election ballots must be physically together, and owners are entitled to observe the ballot counting process in the owners’ “presence”.
Because of these legal issues, a “hybrid” approach where owners are given the option to participate remotely, but are not required to participate remotely, is the best approach. Some meetings lend themselves to remote participate more than others. For instance, board meetings and non-election owners’ meetings are the types of meetings that can be managed remotely. However, if there is an election, there will need to be additional considerations.
Boards should discuss these issues with the association’s attorney so that all of the necessary board authorizations can be prepared and approved by the board.
Tags: Board of Directors, Condo and HOA, Law and Legal
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