Q: Our condominium has initiated litigation against one of our unit owners. The owner being sued is requesting copies of minutes from closed Board meetings where the lawsuit was discussed. We presume the owner wants to use the minutes to support her defense. Are we required to deliver these minutes?
P.R., Bonita Springs
A: Most likely no. Generally, all Board meetings must be noticed with at least 48 hours’ posted notice and the Board must keep minutes of the meetings. The statute also requires all Board meetings to be open to the Members, except when discussing personnel matters and except when the Board is discussing proposed or pending litigation with the Association’s attorney. Because the attorney-client privilege extends from the attorney to the Board of Directors, it is critical that these meetings are closed to the owners because an open meeting may waive the privilege. More importantly, the attorney is unable to provide the appropriate legal counsel if the defendant is sitting in the room.
If this is true, the same should apply to the minutes. It is important for the minutes to reflect actual motions and votes that are made by the Board. For example, if the Board is delegating authority to a Director with the ability to settle the lawsuit at mediation, it is very important that the minutes reflect the settlement parameters so that the Director can demonstrate his or her actual authority to settle at the mediation. If those minutes are not private for the pendency of the litigation, then you would be forced to give the opposing party critical settlement information that provides an improper advantage in litigation.
Thus, the minutes should be confidential from owner access for the pendency of the litigation involving the owner. After the lawsuit has concluded (including appeal periods) the minutes would be open records and available for inspection by all owners, including the owner involving in litigation with the Association.
Visit our Condo/HOA Blog for more of our Q&A articles.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, DeBoest & Cross, PLLC. To ask Mr. Adamczyk questions about your issues for future columns, send your inquiry to: info@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
