Q: Some of the residents in our community want to hold a town hall meeting. All of the membership is invited, including the Board, but we (the Board) simply want to listen. Is this still considered a Board meeting?
A: This a common but difficult question to answer because there is a legal answer and a practical answer. A Board meeting is defined as any gathering where a quorum of the Board is together conducting business. This means that if 3 of 5 Directors are playing golf and start talking about the budget, then the membership should have been notified with 48 hours’ posted notice that the budget would be discussed on Saturday morning on the 13th green. Likewise, if your Board only has 3 Directors, then the Board must provide 48 hours’ posted notice before any 2 Directors even pick up the phone to call each other and discuss the fact that the landscape maintenance crew failed to show up for work today.
Relevant to your question, I have always taken the position that Board members are also owners, and if the members call an informal town hall meeting, the Board should be able to attend without constituting a quorum provided they do not participate in the discussion, do not sit together, and do not otherwise try to turn the town hall meeting into a Board meeting. So legally speaking, the Directors should be able to attend without the meeting turning into a Board meeting.
The practical problem is that these meetings are typically not called to shower the Board with praises and the Directors naturally want to defend themselves. This typically means that at least one of the Directors will say something and it looks awfully close to a Board meeting when the other Directors are listening even though they are sitting apart.
The simple solution to the problem is to simply post a notice in advance. The notice can provide that a quorum of the Board will meet at the date, time and location of the town hall meeting, but the notice can also state that no voting will occur and the meeting is for informational purposes only. This same solution can be applied to workshops, information sessions, retreats, and any other gathering of the Board that is not your typical meeting.
Q: We live in a condominium that only has 2 elevators and the average age of the residents is over 60. Some of our owners feel very uncomfortable with contractors and guests coming into the building due to covid-19, while others feel that there should not be any restrictions on access to contractors and vendors. Does the Board still have the authority or regulate access?
V.P., Bonita Springs
A: Yes, this authority still exists. As of the date this article is being published, it is our opinion that Florida community associations still have the legal authority to exercise emergency powers. In a condominium, Florida Statutes section 718.1265 provides that these powers may be exercised following the Governor’s declaration of emergency and endure as reasonably necessary for the Board to protect the health, safety and welfare of its residents. To address your question specifically, subsection (g) of the statute provides that the Board has the authority to “determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.”
The catch, however, is that the above authority in subsection (g) is also triggered “upon advice of emergency management officials or upon the advice of licensed professionals retained by the board.” This language makes sense when you consider that the intent of the statute was to provide emergency powers in response to a hurricane event or serious property damage, but it is difficult to apply this standard to communicable diseases.
Our opinion is that, depending on your specific circumstances, this emergency power allows the Board to determine that the entire building, the elevators, or other parts of the condominium are inaccessible to certain classifications of entrants. Some condominiums still employ a no guest policy, while others have an open-door policy. Some condominiums have halted all construction for owners and the Association, while others are sending contractors into each unit to replace windows or other scheduled construction work. If you live in a mid or high rise building where the common areas are enclosed and there are many shared spaces and high touch areas, particularly with many residents who can be classified as susceptible by the Florida Surgeon General, then the Board likely has the authority to take action limiting access under this statute.
The above answer is only half complete, however, unless we also discuss whether the Board must limit access to guests and vendors. To this, the answer is no, there is no obligation absent some local ordinance which prohibits access to guests and perhaps non-essential vendors. We do not believe the Board has a duty to prevent access from certain people and thus the Board must be aware that assuming such an obligation (to make sure guests or certain contractors do not enter) carries an implied duty to act prudently and reasonably. Thus, the Board should not adopt such a rule and then make numerous and arbitrary exceptions and provide no mechanism to enforce the restriction. If the Board fails to reasonable enforce its own restriction, there is a possibility an owner will claim the Association failed to protect him/her and he/she contracted the virus due to the Board’s failure to enforce its own rule.
In summary, yes, the Board still has the authority to restrict access. We do not know how long this authority exists, but we believe it still exists today. Before adopting such a restriction, however, the Board should consult with its counsel to discuss the potential liability issues, availability of any insurance, the indemnification provisions of your governing documents, and the Association’s infrastructure to enforce such a restriction.
Q: We had a few extra expenses because of Covid-19 but we did save a lot on maintenance expenses while the amenities were closed. We want to pass this savings on to the owners. How do we do this?
A: In most communities, the Board of Directors is responsible to propose and adopt a budget for each fiscal year. That budget, however, is typically not set in stone for the entire fiscal year and can be amended mid-year. So, if you want to provide some financial relief to owners, you can accomplish this by re-opening the 2020 budget and reducing the overall budget. The result is that the fourth quarter assessment will be lower than originally assessed. Alternatively, you could keep 2020 the same and pass the savings on to the 2021 fiscal year budget and rollover the 2020 surplus (from the reduced expenses) in the 2021 budget.
The Board, of course, has not duty to amend the budget and it is difficult to say that these savings will be completely appreciated because the future of the virus is obviously unknown and you could have additional and unforeseen expenses. That being said, if the Board wants to amend the 2020 budget, it could do so by providing at least 14 days’ mailed and posted notice and adopting a new budget for 2020 to impact the fourth quarter assessment, or it could wait until 2021.