New Neighborhoods–Email Board Meetings and Temporary Shutter Rules

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Email Board Meetings and Temporary Shutter Rules

Dear Poliakoffs,

Is it considered a meeting of the board of directors if the president or another member of the board emails the other members of the board seeking a discussion about an issue to be brought before the board at an established board meeting occurring at a later date?  Signed, J.J.

Dear J.J.,

The issue you’ve raised is a very common one, and frankly we’ve heard different attorneys give different answers as to whether email discussions among directors in between board meetings are prohibited (though, frankly, we don’t think the answer is much in question).  The issue also indirectly raises some common misconceptions about condominiums and open meeting laws.

Many people seem to believe that condominiums in Florida need to abide by Florida’s Government-in-the-Sunshine Law.  They don’t.  The so-called “Sunshine Laws” apply to government organizations, and condominiums are private organizations (though they do have many pseudo-governmental features).  Instead, the Florida Condominium Act, Section 718, contains provisions that are similar to some of the open meeting requirements of the Sunshine Laws.  For example, meetings must be open to residents (with limited exceptions), must be noticed at least 48 hours in advance (if not longer) and a quorum of board members (usually half plus one) are prohibited from meeting and discussing association issues in private.

So generally, any gathering of a majority of the board to discuss any matter that may reasonably come before the board is deemed to be a board meeting and cannot be held without notice, posting of an agenda and the opportunity for the unit owners to be present and to speak on the agenda items.  It is however permissible for less than a quorum of the board to meet and discuss board business.  To that extent, meetings of community association boards differ from government organizations, for whom there can be no gathering of two or more elected officials or members of a committee to discuss matters that may come before the board or committee.  As far as emails go, we believe that, since the intent of the law is to ensure that owners may be heard on any agenda issue, and since statutes are strictly construed, that a quorum of the board may not conduct business via electronic means, because doing so deprives the members the opportunity to participate in the meeting and constitutes a discussion of association business among more than a quorum of board members.

Dear Poliakoffs,

I am the Vice President of an HOA in South Florida.

Recently, there has been a discussion/debate in Florida about the legality of the HOA’s enforcement of mounting and removal of non-permanent hurricane shutters outside of the actual hurricane season.

Our community contains seasonal residents as well as year round elderly residents who have inquired about the possibility of extended or year-long periods for mounting removable shutters.

What is the current Florida legislation on this issue (if any), or legislation under consideration, concerning non-permanent hurricane shutter allowance periods, or dates that an HOA can enforce mounting and removal guidelines?  Signed, A.K.

Dear A.K.,

The issue you raise, whether an association can compel unit owners to remove non-permanent hurricane shutters or keep accordion-type shutters open when there is not a threatening storm, has been debated for over fifty years.  Many seasonal residents lock up their homes and close their shutters for added security.  The problem is that other residents live in their units year round, and they consider closed shutters both an eyesore and a security risk.  They feel it detracts from the aesthetics of the community, and it make it more likely that the property will be targeted as empty or abandoned.  The shared ownership laws do not address this question.  Quite frankly, we can appreciate the sentiments of the owners who do not want to live in a community where half of the homes are “boarded up” for the summer.  To compel owners to keep shutters open, the board or the membership needs to pass rules and regulations specifying when shutters can be closed and when they must be left open.  We believe that these rules are enforceable.

On a totally unrelated note, every community should also have rules in place compelling unit owners to close their water shutoff valves when they will be absent for an extended period of time, and ensuring that their A/C units be left on and set to around 78 degrees to retard any mold growth during the summer rainy season.

Gary A. Poliakoff and Ryan Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.  Gary Poliakoff is a founding principal of Becker & Poliakoff, P.A., and Ryan Poliakoff is the Vice President of Management at AKAM On-Site.  Email questions to condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

This entry was posted in Board Meetings, Condo Associations, Condo Rules, HOAs, Homeowner's Association, Owner Rights, Rules and Legislation and tagged , , , , . Bookmark the permalink.

Leave a Reply