By Attorney Richard D. DeBoest
Q. We recently had a “workshop” that was attended by a quorum of the Board of Directors, and over 50% of the membership. This was a 2-hour discussion about updating our covenants. If this is not an official “board meeting”, are minutes still required? – R.D., Fort Myers
A: Anytime a quorum of the Board is together, and they discuss association business it is considered a board meeting. Therefore, there should have been proper notice given of at least 48 hours posted on the property. Minutes should be kept also but since no votes were taken the minutes would only reflect the basic of when the meeting was called to order, the existence of a quorum, proof of notice, and the time of adjournment. Best practice would also be to put a sentence or two in the minutes about the purpose of the meeting which could be something like – governing document review workshop.
Q. Our Board of Directors meetings are taped, and I understand that the tapes have been either re-used prior to our accepting the minutes for the previous Board Meeting. Sometimes there is a discrepancy regarding the minutes as written but we don’t have the tapes to verify this info. Shouldn’t the tapes, be kept as a legal record of matter for a period of 7 yrs. – P.B., Bonita Springs
A. It is up to the Board’s discretion to establish a policy to keep the tape recordings for seven years or to only keep them until the tape is re-used or the written minutes created. I believe the most common practice is to only keep the tape until it is used for the next meeting and thus taped over or until the minutes have been transcribed. However, I do believe some associations keep the tapes for the full seven years. In any case the Division of Condominiums has ruled that for any period of time that the tape recording of the meeting exists it is an official record and thus available to an owner who makes a request to inspect and copy the official records, regardless of whether or not the written minutes have been transcribed. So, let’s say you tape the meeting. The next Board meeting is 30 days away. The tape will be used to transcribe the minutes within the 30-day period and then the tape will be erased and used again at the next meeting. During that 30-day period or until the minutes have been transcribed and the tape erased the tape is subject to an official records request. As for the transcribed minutes not accurately reflecting what was on the tape it is important to accurately transcribe the actual business conducted at the meeting. Thus, all motions, seconds and votes, with each Director’s vote specifically identified should be corrected. However, the as the saying goes “the minutes are called minutes, not hours, for a reason”. There is no legal requirement to record and transcribe all the discussion and it is generally recommended you do not do so. But with that said if you intend to attribute certain statements in the discussion in the minutes to specific Directors that information should be accurate.
Q. We have an owner that is delinquent in the payment of assessments, and we are sending the file to collection for the placement of a lien on the Unit. The same person recently damaged some of the common element property with her car. Can we also secure the cost of the repair with the same lien for assessments? – T.H., Fort Myers
A. Maybe. It depends on your governing documents. Chapter 718 for condominiums, 719 for cooperatives and 720 for homeowner associations, all provide that the association has a lien to secure all unpaid assessments levied against the owners for common expenses of the Association. However, a charge for the cost of repair of damage against an owner is not an assessment and therefore under the Statutes not subject to an assessment lien. However, some but not all governing documents will have a provision that provides for what is commonly termed a common law lien for charges. The purpose of such a provision is to allow the association to secure payment of special charges incurred by the Association against a single owner for costs incurred as a result of the actions or inactions of the owner. If your governing documents contain such a provision, then the charge can be collected via the lien process. However, if your documents do not contain such a provision the Association would have to sue for damages in court and obtain a personal money judgment against the owner. Thereafter, depending on the how title to the Unit is held the judgment may thereafter become a lien on the unit. Also, if your governing documents do not allow for liens for charges you may want to consider amending the documents to allow for it.