Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: Our community has a very strict tenant screening process and my neighbor has had multiple tenants denied due to poor background checks. The Board adopted a rule requiring the background checks, but we can’t actually find anything about this in the Declaration itself. Is this a valid protocol?
A: Florida law supports the right of a condominium association or homeowners’ association to review and approve prospective leases and tenants. If the Declaration does not authorize the Board to approve or deny based on criminal history, then you must analyze whether the rule is valid. This requires a legal opinion and is very fact specific based on the actual governing documents in your case. If the Declaration provides, for example, only that the owner is required to provide a copy of the lease to the Association, the implication is that the Board has no right to approve or deny and that the Board only has a right to demand a copy. In this situation, the rule may be invalid and the Association should amend the Declaration to include these lease approval requirements in the Declaration itself. If the Declaration provides, for example, only that all leases must be approved by the Board, this may be sufficient authority for the Board to adopt a rule or resolution setting forth good cause for denial. So, it is possible that the rule is valid, but you should first have the Declaration and the rule analyzed by a licensed Florida attorney to determine whether the authority is properly vested in the Board.
Q: Our condominium association is involved in litigation with one of our owners. The owner has requested to review minutes of meetings between the Board and its attorney to discuss this litigation. The minutes include votes on settlement parameters and include opinions of our counsel. Are we required to make these available?
-N.D., Treasure Coast
A: This is a good question because the Florida Condominium Act does require that the Board keep minutes of every board meeting, and that minutes are official records that must be made available to owners when requesting access to official records. On the other hand, the statute also provides that owners are not entitled to access official records which includes any attorney client privilege or attorney work product prepared in connection with a lawsuit.
The statute does not actually provide that minutes concerning a Board meeting with counsel are exempt, but I would advise my clients to protect those minutes until the litigation is resolved. Providing access to settlement parameters would severely hinder the Association’s negotiating position and attorney client privilege is sacred and should not be waived during the pendency of litigation absent a clear intention to do so.
Q: Our election is in 20 days and the Board claims to have mailed out the package last week. Nevertheless, nobody that I know has received the package. Is there enough time to conduct the election?
-S.S., Delray Beach
A: Yes, the statutes only require that the notice of the meeting along with the election materials be sent at least fourteen (14) days before the meeting and election. The Association is required to mail the package to the last address provided to the Association. If the Association has only sent the package to the printer, for example, and not actually postmarked the package, there is still time and the election would not be overturned provided the package is timely mailed. I would also recommend reviewing the Association’s Bylaws as this document sometimes contains notice requirements which are more restrictive than the statutory requirements.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. 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, Adamczyk, 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.