Q: I am a Director and my fellow Board members constantly email each other about Association business and do not include me in the email discussion. I thought all communication had to be open, no?
-T.P., Bonita Springs
A: Not exactly. The Florida Statutes provide that Directors may not vote by email, but the implication is that Directors may otherwise communicate by email. This raises a slew of questions and issues concerning the extent to which a condominium should conduct non-voting business by email, but for purposes of your question, the answer is that I am not aware of any legal requirement that all Directors must be included on all emails. Because communication by email is not a Board meeting, it would be similar to 2 of 7 Directors going to lunch and discussing the budget without inviting another Board member.
From a perspective of transparency and best practices, it may be advisable to include all Directors on emails, but it is not legally required.
Q: Our condominium election is fast approaching. The Association mailed out the ballots and did not include my bio page in the package even though I sent it to the Association with my nomination. They only included the resumes of the incumbent directors. After I raised this issue, the Board emailed all of the resumes to the community 10 days before the election. Is this allowed?
A: There are not many election errors that would completely invalidate an election, but this is one of them. Pursuant to section 61B-23.0021 of the Florida Administrative Code, the condominium should cancel the scheduled vote and start again. Specifically, Section 61B-23.0021 provides that “the failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters shall require the association to mail, transmit, or deliver an amended second notice within the time required by this rule, which shall explain the need for the amended notice and include the information sheet(s) not included with the initial second notice. If an amended second notice cannot be timely mailed, transmitted or delivered, the association must re-notice and reschedule the election following the procedures as set forth in subsection (8) of this rule.” The “timely” requirement above is fourteen (14) days before the meeting. This means that because your association is not able now to timely amend the mailing and send out the proper election materials in a timely manner, the election must be rescheduled. Simply emailing the additional bio pages in the days leading up to the election will not be sufficient to cure the failure to include all of the resumes in the official mailing.
The election should ultimately be rescheduled. If the Association refuses to reschedule the election, you may be able to challenge the election through the Florida Department of Business and Professional Regulations. Note there are time limitations for election challenges, so you should consult a licensed Florida attorney concerning your rights.
Q: My condominium association is installing new pavers at the pool that are a slightly different color than the existing pavers. Our documents require 2/3 of the membership to approve big alterations like this and there has been no vote. Did the Board act legally?
-G.R., Marco Island
A: Perhaps. To properly answer the question, we would need to review your specific governing documents to determine whether the Board was able to unilaterally approve the paver alteration.
First, I have seen many documents that only require membership approval when the cost of the pavers exceeds a certain dollar threshold, or percentage of your budget. If this is in your documents, and assuming the cost of the pavers was a relatively low percentage of your overall budget, it may be exempt from membership approval despite the change in color.
Next, it is possible that the existing color was not attainable for replacement purposes. In the context of roofs, for example, we are seeing many damaged roofs from Hurricane Irma needing complete replacement because it is simply impossible to match the tiles which were installed years ago. Here, if the Board was required to obtain membership approval but was simply unable to secure that specific color, it would allow the Board to install a different paver and the analysis may also depend on the similarity of the available pavers in this context.
Thus, the default rule is that the membership must approve material alterations to the common elements, but there are exceptions to the membership voting requirement and this may have fallen into one of those exceptions but we would first need to review the controlling documents.
Q: I am a candidate running for the Board of Directors in my homeowners’ association. Another candidate is going door to door and asking for proxies intending to vote as a proxy in the election of directors. I was told that proxies are not allowed in the election. What is the law?
-T.P., Bonita Springs
A: The law is very different here between condominiums and homeowners’ associations. Pursuant to Chapter 720, Florida Statutes, governing homeowners’ associations, proxies may be used in the election of directors unless the governing documents self-impose a restriction against the use of proxies. In other words, the default answer is that the proxies are permitted unless your Declaration, Articles of Incorporation or Bylaws specifically prohibit proxies and require the owner to vote directly.
This is very different from condominium associations where the law requires owners to vote directly by using the secret ballot and envelopes. In a condominium, a proxy holder is not allowed to cast the ballot of the owner. The proxy holder can vote on other matters such as documents amendments via limited proxy, but not in a condominium election.
Q: We have 5 candidates running for 2 seats in our upcoming condominium election. The owners are demanding a “candidate forum” where we can ask questions and meet the candidates, but the Board is refusing. How do we get this forum?
A: There is no legal requirement to provide a candidate forum. Because the only legal requirement is to circulate the single 8 ½ x 11 candidate bio sheet referenced in the question above, many of my clients coordinate these forums so that owners can meet the candidate in person and ask questions relevant to the election. As you can imagine, these forums can become contentious and because attendance levels can be very low, many communities often rely solely on the bio sheet.