By Attorney John C. Goede
Q. I am at Board member at my homeowner’s association. We have just recently implemented electronic voting. We also asked that owners provide us with consent to send official association notices via email so we could save on postage and mailing. Our annual meeting is scheduled for December and a very contested election will be occurring. We just received an official records request from one of the candidates for the owners’ email addresses. I know that the candidate is going to use the email addresses to send candidacy information to the owners. Are the email addresses confidential or should the Association provide access to this list?
– Q.M ., Bonita Springs, FL
A. This is also a very good question and deals with the intricacies of the official records portions of the HOA Act, Chapter 720, Florida Statutes.
First, it is important to note that your homeowner’s association’s obligation when it receives an official records request for non-confidential information is only to provide access to the official records. It is not obligated to spend hours combing through and locating specific official records. It is also not obligated to email these records to the owners. The only obligation under the Florida Statutes is to provide access to the non-confidential official records within 10 business days of receipt of the request.
To answer your particular question, email addresses are usually considered confidential official records. However, if an owner has provided consent to receive official association notices via email, including, but not limited to, notices of annual or special member’s meetings or notices of special assessment meetings, then the email address is converted to a non-confidential official record. This means that the requesting owner is entitled to have access to that owner’s email addresses.
The distinction here is the consent to receive official notices from the homeowner’s association. If an owner provides his or her email address to the association for non-official notices such as notices of social events or the community newsletter, then the email address is still a confidential record and your association is not required to provide access to this record. However, if the owner has provided consent to receive electronic notice, then the association is required to provide access to the email address within 10 business days of receipt of the request for access. I advise my associations to keep two sets of email lists – one list for owners who have provided electronic notice consent and another for owners who have not.
Q. We are having issues with the association’s landscaping company. There is a problem with consistency, meaning they show up when they want to and do what they want. It is never in accordance with the schedule they provided to us when the association first signed the contract. Can we terminate the landscaping company?
– L.B., Naples, FL
A. This question depends on the terms of the agreement between the landscaper and the association. I have heard from Board members previously that they believe that any contract can be canceled or terminated without cause. This is not accurate.
In order to determine the association’s rights in this situation, the Board must review the terms of the agreement. It is possible that there is a without cause termination provision. It is also possible that the agreement may only be terminated for cause and only after the association provides notice of the breach of the agreement and gives the landscaper an opportunity to cure the breach. If the landscaper fails to cure the breach within the time period provided in the agreement, only then would the association be entitled to terminate the agreement. Of course, this also assumes that the landscaper does not have any justifiable reason for being in breach such as circumstances listed in the “Force Majeure” provision of the agreement.
If the option to terminate without cause is important to the association, I strongly recommend that the Board speak and engage its legal counsel to negotiate the agreement with the vendor prior to signing the agreement. Doing this will provide the association the opportunity to shape the agreement and avoid any surprises if the relationship goes awry.
Q. One of the Board members of my condominium association is resigning. She is serving the first year out of a two-year term. I may be interested in filling her spot on the Board. How would that work?
– C.G., Naples, FL
A. In order to answer your question, we need to look at your condominium association’s Bylaws. Chapter 718, Florida Statutes, the Condominium Act, provides that if a Board member resigns mid-term, the association’s Board of Directors is authorized to appoint another Board member. Usually, that Board member will serve until the end of the term. In your case, this would be until the end of the two-year term. However, I must note that the Florida Statutes would apply unless the Bylaws state otherwise. This means that you must review your Bylaws to see if there are conflicting provisions. For example, I have seen Bylaws that require that a special election is required if any Director resigns mid-term. I have also seen Bylaws that only allow an appointed Board member to serve until the next annual election and not until the expiration of the term.
In order to know for sure, I encourage you to seek legal counsel on this issue in order to determine if you can be appointed to the Board and, if so, how long you would serve.