By Attorney Richard D. DeBoest
Q: Our association has been holding its board meetings electronically via video conference. They have now announced that the upcoming annual members meeting will be held the same way with no physical attendance allowed. Is this legal?
D.C., Naples
A: Yes, it is legal. First, Florida is still under a state of emergency due to COVID-19 and as such the board may exercise its statutory emergency powers and prohibit physical attendance at meetings. Further, Section 617.0721(3), Florida Statutes provides:
“(3) If authorized by the board of directors, and subject to such guidelines and procedures as the board of directors may adopt, members and proxy holders who are not physically present at a meeting may, by means of remote communication:
(a) Participate in the meeting.
(b) Be deemed to be present in person and vote at the meeting if:
1. The corporation implements reasonable means to verify that each person deemed present and authorized to vote by means of remote communication is a member or proxy holder; and
2. The corporation implements reasonable measures to provide such members or proxy holders with a reasonable opportunity to participate in the meeting and to vote on matters submitted to the members, including an opportunity to communicate and to read or hear the proceedings of the meeting substantially concurrent with the proceedings.”
If any member or proxy holder votes or takes other action by means of remote communication, a record of that member’s participation in the meeting must be maintained by the corporation in accordance with Section 617.1601, Florida Statutes.
Therefore, during the pandemic and even after the pandemic meetings may be held electronically. However, as noted in the statute the board must adopt guidelines and procedures for allowing attendance and participation via remote communication. The guidelines must allow the board to verify each person deemed present and allow them to participate and vote. Your board should therefore consult with the association’s legal counsel to prepare guidelines and procedures in conformance with the law and adopt them at a properly noticed board meeting.
The Division of Florida Condominiums, Timeshares and Mobile Homes has indicated some disagreement with the ability to conduct a secret ballot election virtually, but I believe the powers that be are working on revising the rules to accommodate electronic meeting elections.
Even after the pandemic I suspect electronic meetings will be common and widely utilized. However, the board’s ability to prohibit all physical attendance and only allow electronic attendance will not exist in the absence of an emergency or unless the law is changed.
Q: We have an owner that parks his vehicle only partially in his driveway, so the rear of the vehicle extends into the roadway. This requires other vehicles to drive around the vehicle to avoid a collision. The driveway is large enough to accommodate his entire vehicle, but he has other vehicles and parks this vehicle behind another car which causes the back to extend into the roadway. His garage is also full of stuff so he can’t park vehicles in it. The owner claims that due to his disability, he needs to park this way. Does the association have to allow this?
P.S., Bonita Springs
A: I don’t think so. When a person has a disability, they can request a reasonable accommodation to the rules pursuant to the Fair Housing Act. If the person has a qualifying disability and the request is reasonable and does not place an undue burden on the association, it must be granted. In this case, I do not think it is reasonable to allow the vehicle to impede the roadway creating a hazard for others and potentially for emergency vehicles. Moreover, the person’s disability can be accommodated by parking the other vehicles in the garage. This is certainly more reasonable than impeding the roadway. However, Fair Housing issues are legally very precarious, and you should consult with the association’s legal counsel before denying the request.
Q: How many days do I have to challenge the election in my condominium association? I think the election was rigged because everyone I spoke to said they voted for me, but I still lost.
A.L., Naples
A: The Condominium Act and the Homeowner Association Act both provide that a person has 60 days from the day of the election to file an election dispute with the Florida Division of Condominiums, Timeshares and Mobile Homes. However, before doing so and causing the association to expend time and money responding to the complaint, I suggest you reconsider if your only basis for believing the election was rigged is that your friends said they voted for you. Condominium election ballots are secret and therefore there is no way to determine if your friends actually voted for you and of course, they may not have and just told you they did to appease you.