Need more time for votes, consider a lawful adjournment.

By December 5, 2016Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, 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.

Responses by Steven J. Adamczyk.

Q: Our condominium documents require the approval of two-thirds of all owners to amend the documents. Our association has spent a lot of time and money preparing new documents for approval. Our meeting is fast approaching and almost all of the votes are in favor of the new documents, but there are just not enough votes. What can we do? – T.E., Vero Beach

A: Generally speaking, condominiums pursue amendments by using limited proxies, meaning an owner votes “in favor” or “against” an item of business and appoints another individual to attend the meeting and cast the owner’s vote as specifically instructed. If this is the case, Florida Statutes section 718.112 provides that a proxy is effective only for the specific meeting for which originally given and any lawfully adjourned meeting thereof. Further, the statute provides that a proxy is not valid longer than 90 days after the date of the first meeting for which it was given. This means that if the membership meeting to consider the amendments is next week, those proxies are potentially valid for 90 additional days following next week’s meeting.

If the problem is lack of participation, as opposed to lack of support, then I would recommend the membership adjourn and continue the membership meeting before casting votes on the amendments. If the motion is properly passed by those in attendance, the membership can reconvene at the newly announced meeting and that will provide the association with additional time to garner additional participation towards the amendments. This will also allow the association to keep the proxies from the original meeting without those owners having to vote again. In addition, it is critical to review your Bylaws because there may be restrictions on the ability or timeline for which these proxies may be used, and it is also critical that the appointed proxy holders come back for the future meeting because their vote is only cast if the proxy holder is at the actual meeting to cast the ballot.

Q: Our HOA Board of Directors adopted a budget last week. As I walked out of the meeting, I noticed that there was no notice of the Board meeting posted on the bulletin board. I knew about the meeting because I received an email about the budget meeting. Is the budget valid? – A.B., Jupiter

A: Possibly. Florida Statutes section 720.303 provides a number of different mechanisms to notice a meeting of the Board of Directors. I should also note that you should review your specific Bylaws to determine whether there are any special requirements above and beyond the statutory mechanisms listed below.

First, the statute provides that all board meetings must be posted conspicuously on the property at least 48 hours before the meeting except in an emergency.

Alternatively, the association can mail or hand deliver a notice of the meeting to each member at least 7 days before the meeting and that notice may be mailed electronically to those owners who consent in writing to receive notice by electronic transmission.

Finally, if your community has more than 100 members, your Bylaws may provide for repeated broadcast over a closed-circuit television system.

So, assuming that all owners in your community have provided written consent to receive electronic notice, it is possible the email you received provided proper notice of the Board meeting. If it was not posted conspicuously, and all members have not provided written consent to receive electronic notice, the meeting was likely improperly noticed and should be redone. Assuming the 2017 fiscal year has not already started, this is likely a “fixable” problem.