Condo & HOA Law, Treasure Coast Palm

Treasure Coast Palm Q&A | October 3, 2021| No Access to Zoom or other online meeting Platforms

Naples Attorney S. Kyla Thomson | Florida Attorneys Goede, DeBoest & Cross

By Attorney S. Kyla Thomson

Q. My husband and I do not have access to Zoom or other online meeting platforms. Our condo board started holding all of the board meetings on Zoom when the COVID-19 pandemic was on the rise. However, even now, with the wide availability of vaccines and more outside interactions, the board meetings are still held on Zoom. Most recently, we tried to attend a Board meeting in person at the clubhouse and were told that the Board meeting was only being held via Zoom. Can they keep doing this?

-K.L.T., Delray Beach

A. The simple answer is no, the Board cannot keep meeting on Zoom only and not providing owners with the opportunity to attend in person.

Section 718, Florida Statutes is the law that governs condominium associations in Florida. Section 718.112(2)(b)(5), Florida Statutes allows the Board of Directors or the association committee to meet via telephone, real-time videoconferencing, or real-time electronic or video communication. This statute also allows the Board or committee members who attend via those platforms to vote as if physically present. However, this provision also requires that a speaker must be used so that the Board or committee member conversations can be heard by the Board or committee members who attend in person and any other unit owners present at the meeting.

Additionally, Section 718.112(2)(c), Florida Statutes allows unit owners to attend all Board meetings, with exceptions for Board meetings to discuss attorney-client privileged or personnel matters. This right to attend all “open” Board meetings includes the right to speak at the meetings with reference to all designated agenda items.

The longer answer to your question is that the Board can keep meeting through Zoom. However, it must also provide a physical location where unit owners who do not have access to Zoom can attend the meeting in-person. Also, it is not enough to provide in-person access to the meeting. The association must make sure that there is a speaker or some other system that will allow any Board members or unit owners who attend in-person to be able to interact and speak with the Board members on Zoom.

Q. Our condominium usually approves our yearly budget at the budget approval meeting that is around the same time as our March annual meeting. This is three months after the fiscal year begins in January. The dues usually stay the same as the previous quarter and then they are adjusted after approval at the March budget approval meeting. I heard that there was a recent change in the law that could subject our association to problems if we do not approve the budget before the beginning of our fiscal year. Can you explain more about this?

-S.R., Fort Lauderdale

A. Section 718, Florida Statutes governs condominium associations in Florida. Section 718.112(2)(f)(1), Florida Statute is the provision to which you are referring in your question above. This provision was recently amended on July 1, 2021 to include a requirement that the association Board of Directors is required to adopt the annual budget at least fourteen (14) days prior to the start of the association’s fiscal year. Additionally, in the event that the board fails to timely adopt the annual budget a second time, it shall be deemed a minor violation and the prior year’s budget shall continue in effect until a new budget is adopted.

This means that your association’s Board of Directors must adopt the annual budget at least fourteen (14) days prior to January 1, 2022 if your association’s fiscal year begins in January each year. It looks like the law may provide some “wiggle room” for this coming fiscal year but quickly closes the loop for the next fiscal year as the failure to timely adopt the annual budget a second time shall be deemed a minor violation.

Some associations have inquired as to the meaning of the term minor violation under this provision. The term minor violation comes from specific categories of violations under the Department of Business and Professional Regulation, Division of Condominiums, Timeshares and Mobile Homes (the “DBPR”). The DBPR is the governmental agency which oversees the operation and administration of condominium associations in Florida. An issue can either be a minor violation, a major violation, or not a violation at all. Any issues that are deemed a minor or major violations carry monetary penalties that are imposed against the association. These monetary penalties are often significant. As such, it is very important to make sure that the association is paying attention to the requirements under Section 718, Florida Statutes and other codes that may govern the operation and administration of a condominium association.

If you have further questions on this issue, it is important to consult your association’s legal counsel to ensure that your condominium association is in compliance with the recent amendment in order to avoid a DBPR violation and possible monetary penalties imposed against the Association.