TC Palm Q&A Column, June 25, 2017

By June 25, 2017News, Questions & Answers

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: We are an HOA and our Board is constantly holding, what they call, executive meetings with all Board members present.  These meetings are never posted.  They transact business at these meetings and don’t keep minutes.  These meetings also do not have anything to do with legal issues and the association lawyer does not attend.  Under the Sunshine Laws are these meetings legal?  Do members have the right to attend these meetings?

J.S., Naples

A: Based on what you have described the meetings are not legal.  A Board meeting occurs whenever a quorum of the Board is present in person or on a conference call and Association business is discussed.  Such meetings must be properly noticed and owners have a right to attend and comment on any agenda item.  Minutes must be kept.  The only exception is when the Board meets with the Association’s legal counsel to discuss proposed or pending litigation or an attorney client privileged matter.  The only other exception is when the Board meets to discuss a “personnel matter” which in my opinion means something involving an Association employee.  Most Association’s do not have employees.  The Association manager, landscaper and other vendors are not considered employees of the Association.

Q: Can a member of the Board be nominated and elected if they have failed to pay a previous assessment the prior year?  This person is still in arrears.  This person was nominated and elected and is currently serving.  Thank you very much.

A: No.  The law provides that at the time a person is nominated for the Board they must be completely current on all monetary amounts due and owing to the Association.  Once a person becomes a Board member if they fall behind more than 90 days in the payment of any monetary amount owed to the Association they are automatically removed from the Board.  When they become current the remaining Board members may but are not obligated to re-appoint them to the Board.

Q: Our association is taking a vote on taking money from reserves for special project the Board deems necessary.  I want to go to the meeting to observe the count but I do not want to contribute to the number needed for the quorum to hold the meeting.  Can I go to meeting and not vote or turn in proxy at all and not be considered part of their needed quorum?

A: In my opinion the answer is no.  A quorum is established by your physical presence at the meeting or by delivering a proxy.  So if you attend you can be counted toward the quorum.  I would suggest you not attend the meeting but make an official records request for to inspect and copy the votes after the meeting.

Q: At our last election there were 4 candidates running for 3 open seats.  A few weeks after the election one of the Directors resigned.  Is the Board required to fill the vacancy with the person who came in 4th in the last election?  

A:  No.  The Board can fill the vacancy with any eligible person of its choosing.

Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC.  Ask questions about your issues for future columns, send your inquiry to: question@gadcllaw.com. 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, PLLC 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.