By Attorney Steven J. Adamczyk
Q: In response to COVID-19, our community wants to authorize the use of electronic voting to facilitate participation. Can the association use an online polling service, or do we need to engage a third party to implement the electronic voting system?
H.D., Naples
A: As a result of social distancing requirements and risks associated with in-person gatherings, many communities are implementing an electronic voting system to facilitate participation. The board is not required to do this, but it is an option. Often, communities will engage an internet polling service which can be very helpful to gauge the interest of the community in new projects, social events, or operational issues such as finding out how many owners want premium bulk cable packages or what percentage of owners would use the gym early in the morning. Although these polling services are a useful tool and are often free, these services are not the legal equivalent of electronic voting under Florida Statutes.
Section 718.128 of the Florida Statutes specifically provides that any electronic voting system must be able to authenticate the owner’s identity, validate that the vote was not altered in transit, provide a voting receipt, deliver election results in a format to ensure an owner’s vote is secret, and store the voting information for inspection. The complimentary polling services would likely fall short of these requirements. Thus, you will need to engage a service provider that can meet these requirements. My experience with electronic voting has been positive and, in addition to reducing risk of COVID-19 transmission, it also saves time to count voting results and provides an alternative to using paper proxies and envelopes.
If your board is considering electronic voting, the statute does require that the board hold a special meeting with at least 14 days’ mailed and posted notice to authorize the use of electronic voting and other deadlines, such as the deadline to opt in and to opt out leading up to a schedule vote. I recommend you consult your legal counsel to discuss any questions on how your association can properly authorize electronic voting and draft any required resolutions.
Q: One of our condominium unit owners has fallen behind on assessment payments. A different owner has requested to see the financial information and correspondence with the delinquent owner relative to the collection efforts. Is this information available to owners?
T.D., Bonita Springs
A: Assuming the correspondence you are referencing does not include any attorney-client communications between the board and its counsel, most of the relative information and documents incident to the collection process would be open for inspection by unit owners. Generally, the association must maintain official records and Section 718.111(12) of the Florida Statutes provides that the association’s official records include “a current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.” There is also a provision in 718.111(12) that written documentation relative to the operation of the association are official records.
So, while there is often a misperception that this information must be kept confidential, the analysis is that a unit owner’s financial ledger and payment history are official records, that the correspondence maintained by the association are official records, and there is no exception to inspection by owners for this information.
Keep in mind that if your records show confidential information such as bank account numbers, social security numbers, or other sensitive information, this information or documentation should not be provided to unit owners for inspection, but the financial information should be provided.
Q: When I walk my dog, one of my neighbors’ dogs runs out and barks at me and frankly it makes me afraid to walk down this street. The dog stops at the paved street because of an electronic fence, but I cannot even walk on the sidewalk because of the dogs and it forces me to walk on a busier street. Is this allowed?
A.C., Naples
A: This question highlights a common misperception about property rights in homeowner’s associations. This is not always the rule, but the general rule is that the road in a platted community is dedicated to, and owned by, the homeowners association (HOA). If you review the actual plat, you will likely see that the roadway is wider than the paved street and includes the sidewalk. If you have a sidewalk in front of your home, this likely means that your actual property line ends just short of the sidewalk. If you install your invisible fence so that the dog is allowed to go all the way to the paved street, you are probably fencing in someone else’s property – mainly the association’s property.
The question becomes a lot more complicated at this point, because many HOA covenants specifically allow owners to do this and exert a fair amount of control over the area between the sidewalk and the paved street. Some counties also have ordinances which govern if your dog can be off a leash on the lot, and if this is the case, it may be a violation to allow the dog off leash beyond the sidewalk. Finally, some plats may also indicate that the owner’s lot does extend to the paved street. If this is a concern, I would recommend that you consult with a licensed Florida attorney to review the applicable documents and provide an opinion on how to address any concerns.
Q: Our association levied a special assessment a few months ago for concrete restoration repairs. The assessment requires monthly payments for another 18 months and owners are asking what to do if they sell their unit now. Who is responsible for the remaining payments?
P.T., Marco Island
A: The first part of this answer is that owners are responsible for assessments that come due during their ownership. If the special assessment installments come due after the closing of the home, then the new purchaser would be responsible for those future installments. The second part of the answer involves the contract between the buyer and seller. This is a private contract between the parties so the association is not involved in these negotiations, but buyers and sellers will frequently negotiate who will be responsible for any outstanding special assessments that are either pending or imminent when the contract is signed. Obviously, the seller would like to avoid paying for something that he or she will never use again, like the waterproofing, but the buyer has leverage to buy another home that does not have any pending special assessments.
From the association’s perspective, a critical part is disclosure through the estoppel process. When there is a real estate closing, there is almost always a request from the closing agent for an estoppel, which requests a lot of information such as whether there are any covenant violations, outstanding delinquent assessments, and any pending special assessments. If the estoppel is correctly completed and delivered, the buyer will know exactly what he or she is purchasing and there should be no surprises.
Another critical aspect from the association’s perspective is whether the outstanding balance must be due and payable at closing or whether the buyer can step into the seller’s shoes for future payments. When the board levies the assessment itself, we recommend this aspect be included as part of the resolution to avoid any ambiguities.