TC Palm Q&A Column, December 25, 2016

By January 18, 2017Questions & 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 John C. Goede.

Our Board of Directors is trying to improve on its use of technology. The Board recently circulated an online survey to ask whether the membership approved of certain changes to the common elements including the lobby and the monument sign. The Board recently emailed the condominium owners that the survey was so successful that is sufficed for membership approval to make the changes. Is this lawful? – T.S., Treasure Coast

A: These online surveys are becoming more and more popular as a way for the Board of Directors to get community feedback. The problem is that these online surveys are nothing more than a straw poll in terms of corporate action. Thus, even though you may have email address for 90 percent of the community, and even though 80 percent of those owners were in favor of a particular action, it is not a binding vote.

We advise our clients that these online surveys are great tools, but if the desired action requires a membership vote, ultimately you need to take formal membership action through a membership meeting or through written consent.

This question raises two additional points worth noting. First, the above answer assumes the action requires a membership vote. If the desired action in fact is within the Board’s discretion, the results of the online survey do not dictate the Board act in line with the survey results. If the Board has the authority to act, the survey would only indicate whether the membership agrees or disagrees, but it does not require the Board to vote with the membership. Second, do not confuse the online surveys with legal online voting. The Florida legislature recently authorized the use of online voting for various matter, including elections, amendments, budgetary votes and other membership votes. Formal online voting also requires the Board to take some initial steps to authorize online voting so much sure you consult with legal counsel before assuming any electronic vote constitutes a legal vote.

We have a corner of the property that is poorly lit. We have not gate and I have recently seen trespassers in the corner and what appears to be drug sales. The owners are demanding cameras and more security but it is not in the budget. What can we do? – C.S., Stuart

A: In this context, the Board owes the owners a duty equivalent to the duty owed by a landlord to a tenant, which is to protect against reasonably foreseeable criminal acts. Here, if the Board is on notice of criminal activity on the premises, the Board should take action. This would not require the Association to engage full time armed guards, but the Board needs to act reasonably. In this case, it may mean that the Board should install additional lighting and a security camera. It may mean the Board contracts with the local police department for additional drive through visits or off duty policy presence. It may mean the Association should install a fence. The response varies based on the specific facts, but there are some court decisions holding an Association liable for injuries or damages to residents where the Board had knowledge of breaches in the perimeter and poor lighting, both of which were key factors in the criminal act.