Statutes obliging owners to be informed of association committee meetings

Editor’s Note: Attorneys for Goede, Adamczyk, DeBoest & Cross, PLLC., answer questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning, and business law.

Q: What are the legal requirements for a 1,000-member HOA to notify owners of the time and location of committee meetings?

A: The answer to this question does not depend on the size of the community, but rather on the status of the Florida HOA and the association’s bylaws.

For HOAs: Florida statute 720.303(2) provides board meeting notification requirements. These requirements are the subject of a posted notice and sometimes a notice sent by mail. The right of owners to attend most council meetings and the right to speak on agenda items. These same requirements apply to committees as follows:

720.303(2) “meetings of any committee or other similar body, when a final decision will be made regarding the expenditure of association funds, and to any body vested with the authority to approve or disapprove of architectural decisions concerning a specific parcel of residential property owned by a member of the community.”

Therefore, only committees that have the authority to make CRA decisions or final decisions regarding the expenditure of Association funds. All other committee meetings need not be called unless required by the bylaws.

For condominiums: Florida statute 718.112(c) provides board meeting notification requirements. It also provides in part the following:

“Meetings of a committee responsible for taking a final decision on behalf of the board or making recommendations to the board concerning the association’s budget are subject to the provisions of this paragraph. Meetings of a committee which does not take final decision on behalf of the board or fail to make recommendations to the board regarding the association’s budget are subject to the provisions of this article, unless such meetings are exempted from this article by the bylaws of the association.”

So, for condominiums, if the committee makes budget recommendations or takes final action, it should be noted as a board meeting. All the other committees do not have to be noticed IF the statutes exempt them. You should check the condominium bylaws to see if other committees are exempt from notice requirements.

Q: Our Board of Directors took it upon themselves to rebuild and expand the size of the communal tiki hut after Hurricane Irma without the vote of the membership to do so. It was over 50% destroyed. Wasn’t that a violation of condo law?

A: May be. Increasing the size of the tiki hut would be considered a material change to the common elements. The Condominium Act provides that material changes to the common elements must be approved by 75% of the total voting interests, unless the Declaration provides otherwise. So, if your declaration of co-ownership is silent on the issue, the expansion would have required the approval of 75% of all unit owners. However, it is entirely possible that your statement will allow the board to make such decisions without a vote from the owner.

Q: We had a tie in the election of the directors of our condominium. How to break the link?

A: First, I always encourage tied contestants to agree that one of them will remove or flip a coin to determine the winner. This saves time and money. In the absence of this, however, the Florida Administrative Code, which governs condominiums, in addition to Florida Statutes Chapter 718, prescribes the method for severing electoral ties. It provides that within seven (7) days of the date of the election in which a tie vote occurred, the council shall mail or personally deliver to voters a notice of election by run-off. The notice must inform voters of the scheduled date for the second ballot, must include a ballot, and must include copies of all candidate information sheets that were previously submitted by the candidates (candidates may not edit or revise their information sheets for runoff purposes). The second round of elections must take place at least twenty-one (21) days, but not more than thirty (30) days after the date of the election in which the equality of votes occurred.

Q: One of our association’s board members uses his out-of-state attorney to review everything that’s going on with the association, including reviewing the property manager’s contract. The board member submitted his attorney’s bill to the Association for reimbursement. The rest of the board politely declined to pick up the cost. Question: Can a board member use his personal attorney to review the affairs of the association or is this a violation of the board member’s duties to the association? And if the board member can use his personal attorney, does it matter that said attorney is an out-of-state attorney who doesn’t know Florida condo law?

A: If a board member wishes to use their personal attorney, whether in-state or out-of-state, to review the affairs of the association, it is their prerogative to do so as long as the information is not not confidential. However, the association is under no circumstances obliged to pay the legal costs. A personal lawyer’s duty of loyalty to a council member is to his client who, in this case, is the individual council member and not the association. Further, counsel may not rely on the advice of an attorney not licensed in the State of Florida in lieu of the advice of a Florida licensed attorney. Finally, an unlicensed Florida attorney advising on Florida law must be very careful to avoid an allegation of practicing law in Florida without a license.

Q: Late Fee – Our management company charges a late fee once per assessment installment each time an assessment payment is late (after the 10th in our case). When the case is given to an outside collection agency, they charge late fees every month once they receive the case, so there is always an inconsistency in these cases. Our statement asks for a $25 late fee. However, FS 720.3085(3)(a) seems to indicate that late fees should be assessed per installment and not per month. So we think the FS 720 is in control in this case. Do you agree? Other comments?

A: Yes I agree. For example, if the January 1st payment is late, you can charge $25, but in February, when the January payment has still not been paid, you don’t charge another $25. However, if the installments are due monthly if the February installment is not paid, you may charge late fees for February and so on.

Richard D. DeBoest II, Esq., is co-founder and shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit www.gadclaw.com or ask questions about your issues for future columns, send your request to: [email protected] The information provided here is for informational purposes only and should not be construed as legal advice.

Publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act, or refrain from acting, on the basis of the information in this article without first contacting an attorney, if you have questions about any of the issues raised here. Hiring a lawyer is a decision that should not be based solely on advertisements or this column.

Andrew B. Reiter