Condo & HOA Law, Naples Daily News

Naples Daily News | January 26, 2020 | Director Name Must be Recorded in Minutes

Q:  In our Association Board meeting minutes the vote of each director has always been listed by name. Such as, Director A – Yes, Director B – No, etc. Recently the Board President told the Secretary to stop recording the votes in this manner and just record the outcome such as 3 yes, 2 no, motion passes. Is the legal?

H.M., Bonita Springs

A:  No, it is not legal. Both the Condominium Act and the HOA Act provide that “a vote or abstention for each member present shall be recorded in the minutes.” So, you must record the vote of each Director by name in the minutes.

Q:  I am a resident of an association that is governed under the Florida Statutes 718, and we are about to have our annual election. We were given a Limited Proxy with only the Board Secretary with the rights as the proxyholder. If I read it correctly, the home owner has the right to designate his or her choice for a proxyholder. Our current President said he would throw out any proxyholder sheet that doesn’t have the Secretary listed as the proxyholder. Could you give me a clear understanding as my rights as an association owner? Thank you.

S.M., Naples

A:  The Condominium Act (Chapter 718 Florida Statutes) does not expressly state who may be a proxyholder. Sometimes the Association’s governing documents do require that a proxy holder must be another Owner. I have never seen governing documents that mandate that the proxyholder may only be the Secretary and I doubt such a provision would be legally enforceable. The State of Florida Division of Condominiums publishes a standard form proxy and it provides a space to write in the name of the proxy holder which may be someone other than an Officer of the Association. Florida Administrative Code Section 61B-23.002(5) provides that when members vote by proxy they must use the State published form or a form “substantially similar” to the State published form. Since the State published form proxy provides for a write name for the proxy holder it is my opinion that deleting this option would be a substantial change and therefore not allowed.

Q:  Our association only posts minutes of any Board meeting in a window-case in our clubhouse. Of course, any owners who are still at their winter homes have no access to these minutes. The Association will not post them on our association website (on a password-secure owner’s webpage). Does the new condominium act cover how meeting minutes must be provided to its’ unit owners?

T.F., Naples

A:  Several years ago, Chapter 718 Florida Statutes governing condominiums was amended to require that Condominiums with 150 or more Units have a website. The Statute lists certain documents that must be posted on the website. The Statute does not list “minutes” of Board meetings as one of the required documents that must be posted. So regardless of size of your Condominium there is no legal requirement that the Board meeting minutes be posted on the website.

Q:  We do not have a convenient place to post our notices in our 48 home HOA subdivision. In this electronic modern day, is posting on our website (which every owner has access to) appropriately meet the 48-hour requirement, or will we still need to send notice by mail or email 7 days in advance? Our bylaws do not address electronic posting.

L.D., Estero

A:  Section 720.303(2)(c)1, Florida Statutes governing Homeowner Associations provides that notices of all board meetings must be posted in a conspicuous place in the community at least 48 hours in advance of a meeting, except in an emergency. In the alternative, if notice is not posted in a conspicuous place in the community, notice of each board meeting must be mailed or delivered to each member at least 7 days before the meeting, except in an emergency. Notwithstanding this general notice requirement, for communities with more than 100 members, the association bylaws may provide for a reasonable alternative to posting or mailing of notice for each board meeting, including publication of notice, provision of a schedule of board meetings, or the conspicuous posting and repeated broadcasting of the notice on a closed-circuit cable television system serving the homeowners’ association. However, if broadcast notice is used in lieu of a notice posted physically in the community, the notice must be broadcast at least four times every broadcast hour of each day that a posted notice is otherwise required. The association may provide notice by electronic transmission in a manner authorized by law for meetings of the board of directors, committee meetings requiring notice under this section, and annual and special meetings of the members to any member who has provided a facsimile number or e-mail address to the association to be used for such purposes; however, a member must consent in writing to receiving notice by electronic transmission.

So, if your community has more than 100 Lots, you can publish the notice on a closed-circuit television channel serving the community if you have one. Alternatively, Owners may “opt in” to receiving notice via e-mail. Other than the foregoing publishing the Notice on the website only would not be deemed legal notice of the meeting.

Q:  Our HOA has been waiting to hear from our insurance company for coverage of roof damage since the hurricane in 2017. Without notice to the members, or all of the board members, the VP signed what is an Assignment of Benefits contract with a contractor who subs all of his work out. Is it legal for one board member to act on a major project, in a non-emergency situation without bringing it to the full board and a members meeting?

S.K., Marco Island

A:  In short, the answer is no. No single officer or director has the inherent legal authority to sign any contract for the Association without the approval of the Board. Any decision to authorize the signing of a contract must be made at a properly noticed Board meeting. Unfortunately, the fact that the officer/directors signed the contract without authority will not likely allow the Association to cancel the contract. Unless the vendor had actual knowledge that the officer was not authorized to sign the contract the vendor can rely on the apparent authority of the officer/director.

Q:  Are Boards required to vote/approve minutes for Executive Sessions and Workshops as they do with the regular board meeting minutes?

J.K., Fort Myers

A:  Yes. All Board action (i.e. votes) must be recorded in the minutes of the meeting. Board minutes are not “official” until they have been approved by another Board vote. However, under certain circumstances the vote to approve the minutes might also occur at a closed executive session of the Board if the content of the minutes is attorney client privileged and the matter at hand is on-going.

Q:  Are Board certifications still required and if so, do you know when and where upcoming courses are being held?

R.S., Naples

A: Yes, Board certification for HOA, Condo and CO-OP Directors is still required. You can contact our law firm 239-331-5100, or for a schedule of upcoming events, or to register for a class visit our website: www.gadclaw.com. There are also other providers that hold classes such as Education Pathways and CAI. See educationpathways.biz and southgulfcoastchaptercai.com for a schedule of their events.

Visit our Condo/HOA Blog for more of our Q&A articles.

 


Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC.  Visit www.gadclaw.com, or to ask questions about your issues for future columns, kindly 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, Adamczyk, 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.