Condo & HOA Law, Naples Daily News

Naples Daily News Q&A | January 30, 2022 | Submitting an Official Records Request to your Condo Association

Fort Myers Attorney Richard D. DeBoest, II | Florida Attorneys Goede, DeBoest & Cross

By Attorney Richard D. DeBoest


Q.    I want to submit an official records request to my condo association. Along with the records I also want the board to answer a few questions I have about certain expenses from this past year which is also the subject of the records request. Can you explain how I can do this, and what is the association required to do?  – B.S., Naples, FL

A:     Requests to inspect official records and written inquiries to the association are addressed in separate parts of Chapter 718, Florida Statutes. Official records requests are covered under Section 718.111(12), Florida Statutes, which requires associations to have their official records open to inspection to a unit owner or their authorized representative within ten (10) working days after receiving a written request. The right to inspect the records includes the right to make or obtain copies. Written inquiries are governed by Section 718.112(2)(a), which provides that when a unit owner submits a written inquiry by certified mail to the board, the board must respond in writing within thirty (30) days. In that response the board must either (a) give a substantive answer to the inquiry, (b) notify the unit owner that the board has requested a legal opinion from the association’s counsel, or (c) notify the unit owner that the board has requested advice from the Department of Business and Professional Regulation (the “DBPR”). If the board requested a legal opinion from its counsel, a substantive answer must be given to the unit owner within sixty (60) days of the association’s receipt of the written inquiry. If the board requested advice from the DBPR, the board must provide a substantive answer to the unit owner within ten (10) days after its receipt of the advice from the DBPR. In the case of both records requests and written inquiries, associations may adopt reasonable rules regarding the frequency, time, location, notice, and manner of the requests or inquiries, so you will need to check your association’s governing documents to determine if there are any such rules. Note that both an official records request and a written inquiry must be submitted in writing, but the written inquiry is also required to be submitted via certified mail.

Q.   What are the quorum requirements for member meetings? – J.P., Bonita Springs, FL

A:     For those that are unaware, a “quorum” is the number of members that must be present at a meeting in order for association business to be conducted at such meeting. If a quorum is not achieved, a vote cannot be taken, and no business may be conducted. You will need to check your governing documents first to see if there is a different quorum standard than what is required by Florida law. If your association is a condominium, Section 718.112(2)(b), Florida Statutes, provides that unless a lower number is provided in the association’s bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members is a majority of the voting interests. If you live in a homeowners’ association, Section 720.306(1), Florida Statutes, provides that unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be thirty percent (30%) of the total voting interests. Note that in either case, units or parcels whose voting rights have been suspended for non-payment of assessments at a duly called Board meeting do not count towards the total number of voting interests for purposes of calculating a quorum. Unless otherwise provided in the statute or the governing documents, decisions are to be made by a majority of the voting interests represented at a meeting at which a quorum is present.

Q.   Our condo association just sent out notice of a board meeting where the new budget for the upcoming year will be passed by the board, and it had the proposed budget attached to it. The proposed budget looks like it’s a significant increase in the amount of assessments. Isn’t that something that the unit owners have a right to vote on before it is passed by the board? –  M.I., Naples, FL

A:        Section 718.112(2)(e), Florida Statutes, deals specifically with annual budget meeting for condominiums. In particular, subsection (2) addresses the issue in your question, and states that if a board adopts an annual budget where assessments against unit owners exceeds 115% of assessments for the preceding fiscal year, and the board receives a written request for a special meeting from the unit owners representing at least 10% of all voting interests, the board shall conduct a special meeting of the unit owners to consider a substitute budget. The written request from the unit owners must be received by the board within twenty-one (21) days after their adoption of the budget which is being challenged. Once the board receives the written request, it must duly notice and hold the substitute budget meeting within sixty (60) days of the adoption of the original budget. Unit owners may consider and adopt a substitute budget at the meeting if such substitute budget is approved by at least a majority of all voting interests, unless your association’s bylaws require adoption by a greater percentage. There must be a quorum of unit owners present at such meeting, because if not, the original budget shall take effect. Therefore, in your case, you will need to wait until after the proposed budget is passed by the board, then calculate whether the budget exceeds 115% of last year’s budget. If so, you will need to gather the signatures of at least 10% of the voting interests of unit owners and submit a written request to the board within twenty-one (21) days of the date that the board passed their budget.

Q.   My condo association’s board used to hold regular board meetings on a monthly or at least quarterly basis. However, in the last 2 or 3 years they seem to only have a meeting when there is an emergency that requires it (other than the once-a-year meeting where the board election is held). Aren’t they supposed to hold meetings on some kind of regular basis? –  R.T., North Naples, FL

A:     You will have to check your association’s governing documents to see if they contain any specific provisions with regard to board meetings, because if there is not a specific provision, then the board is not required to hold meetings at any regular interval as Chapter 718, Florida Statutes, does not contain any specific mandate for boards of directors of condominium associations to meet with any certain regularity or timing, other than holding the annual meeting for the election and a meeting to pass a budget. Although not required, the board should consider holding meetings with some sort of consistency in order to address issues that typically arise on a regular basis throughout the year. Please note that if there is a specific issue that you want to have the board address, you do have the option of petitioning the board to hold a meeting under Section 718.112(2)(c)(1), Florida Statutes. Under that provision, if 20% of the voting interests of the association petition the board to address an item of business, the board, within sixty (60) days after receipt of the petition, must place the item on the agenda at its next regular board meeting or at a special meeting called for that purpose.