Q: Our community has an important vote coming up and we want to facilitate electronic voting so that owners do not need to attend a physical meeting due to the virus concerns. How do we accomplish this?
T.P., Naples
A: As a result of COVID-19, many communities are trying to find ways to facilitate participation while avoiding group gatherings. Electronic voting is a great way for owners to participate and vote while mitigating the risk of group gatherings – even where social distancing is practiced.
First, if the virus were not relevant, the statute provides a fairly simple mechanism to allow electronic voting. Specifically, the Board needs to authorize electronic voting and the Board does this at a special meeting with heightened notice. Whereas normal Board meetings require only 48 hours’ posted notice under the statute, the Board must mail and post notice of its Board meeting to consider electronic voting at least 14 days before the Board meeting. At the special Board meeting, the Board would adopt a resolution which contains some basic information required by the statutes, such as opt-in and opt-out deadlines for electronic voting. After the Board meeting, the Board would then engage a vendor to enter owners’ information, work with the Association to obtain owners’ consent to vote electronically, and provide participants with online credentials and access. It is worth noting that online survey platforms are not the equivalent of online voting. If you are conducting an electronic poll of owners that does not require special registration and credentials, then you are at best conducting a straw poll that is not the legal equivalent of a vote for purposes of corporate action.
The next part of the answer raises implications due to COVID-19. The emergency powers granted to the Board provide that the Board can give “practicable” notice during an emergency. If your Board has the ability to exercise emergency powers, the presumably you could give less than 14 days’ notice as required by the statute to authorize electronic voting. In our opinion, however, this would also depend on the nature of the vote. If, for example, you are trying to use electronic voting to change the paint color of the condominium buildings, you would need to provide the full 14 days’ notice because this is a discretionary action. On the other hand, if you are trying to implement electronic voting to install new air cleaning systems, this has a much more tangible relationship to the emergency itself and may justify less than 14 days’ notice for the Board meeting to authorize electronic voting.
Q: Our community has an easement to cross a neighboring community to enter and leave the community. The easement has traditionally been used for vehicle access, but we want to make improvements to the easement area to include vehicle gates, pedestrian access gates, and landscaping improvements. The neighboring community is objecting to our plans. Do we have the right to do this?
P.D., Bonita Springs
A: A general rule on easements is that they have a scope. When you negotiate an easement, a well drafted easement will contain some definition concerning the intended use and function of the easements. From there, the analysis provides that uses within the scope are permissible. Thus, the answer here is that the language of your easement document is paramount. It is possible that the easement provides that the easement is solely for vehicular traffic. It is also possible that it is generally for ingress and egress for pedestrian and vehicular traffic. If the easement is limited solely to vehicular traffic, a pedestrian access gate may fall outside of the intended scope.
Similarly, the easement may provide that the easement includes a paved street and no other improvements. If this language is in your easement document, then it is possible the landscaping improvements may fall outside of the intended scope.
Thus, it is possible that all or none of these improvements are possible. This is not because of some general legal principal, but because your specific easement has a scope that must be analyzed in connection with your intended use. I would recommend you consult a licensed Florida attorney with a real estate and community association backgrounds to provide you an opinion on the scope of the easement.
Q: The population of our high-rise condominium is mostly above 60 years old. Over the past few weeks, we have been trying to re-open the amenities. With all of the news reports concerning COVID-19, we want to reconsider these decisions and shut them down again. Can we do this?
R.F., Naples
A: In short, yes. If you assume that the Association has emergency powers under Florida Statutes section 718.1265, that statute provides that the Association can determine that certain portions of the condominium property are closed to residents, guests, invitees, licensees, etc. It is also become more clear that COVID-19 is the type of emergency that triggers these emergency powers under Chapter 718. As of the date this article is drafted, we believe the Association still has emergency powers and can exercise emergency powers. Because of this, the Association still has the ability to reconsider whether a certain amenity should be open or closed to address safety concerns.
If you keep the amenity open, it is again critical that you consider two important aspects. First, if you adopt a protocol or requirement to open, make sure that you can implement the protocol or requirement. If you are going to say that you will clean twice a day, make sure you can and do clean twice a day. Second, make sure that you post appropriate signage. We have published a number of articles on this issue, but the basic requirements should be 1) consult your physician prior to using an open amenity; 2) be aware that the Association is unable to guarantee a germ free environment; 3) exercise social distancing; and 4) use at your own risk.
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John C. Goede Esq. is co-founder and shareholder of the Law Firm of Goede, DeBoest & Cross, PLLC. Visit our website at www.gadclaw.com, or to ask questions about your issues for future columns, 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, DeBoest & Cross 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.
