Treasure Coast Palm Q&A | April 26, 2020

By April 26, 2020 May 4th, 2020 Condo & HOA Law, Treasure Coast Palm

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 do not have a convenient place to post our notices in our 48 home HOA subdivision. In this electronic modern day is posting on our website, which every owner has access to, appropriate to meet the 48-hour requirement or will we still need to send notice by mail or email 7 days in advance? Our Bylaws do not address electronic posting.

M.D., Port St. Lucie

A: Section 720.303(2)(c)1, Florida Statutes governing Homeowner Associations provides that notices of all board meetings must be posted in a conspicuous place in the community at least 48 hours in advance of a meeting, except in an emergency. In the alternative, if notice is not posted in a conspicuous place in the community, notice of each board meeting must be mailed or delivered to each member at least seven (7) days before the meeting, except in an emergency. Notwithstanding this general notice requirement, for communities with more than 100 members, the association bylaws may provide for a reasonable alternative to posting or mailing of notice for each board meeting, including publication of notice, provision of a schedule of board meetings, or the conspicuous posting and repeated broadcasting of the notice on a closed-circuit cable television system serving the homeowners’ association. However, if broadcast notice is used in lieu of a notice posted physically in the community, the notice must be broadcast at least four times every broadcast hour of each day that a posted notice is otherwise required. The association may provide notice by electronic transmission in a manner authorized by law for meetings of the board of directors, committee meetings requiring notice under this section, and annual and special meetings of the members to any member who has provided a facsimile number or e-mail address to the association to be used for such purposes; however, a member must consent in writing to receiving notice by electronic transmission.

So, if your community has more than 100 Lots you can publish the notice on a closed-circuit television channel serving the community if you have one. Alternatively, Owners may “opt in” to receiving notice via e-mail. Other than the foregoing publishing the Notice on the website only would not be deemed legal notice of the meeting.

Q: Are Boards required to vote/approve minutes for Executive Sessions and Workshops as they do with the regular board meeting minutes?

J.W., Vero Beach

A: Yes. All Board action (i.e. votes) must be recorded in the minutes of the meeting. Board minutes are not “official” until they have been approved by another Board vote. However, under certain circumstances the vote to approve the minutes might also occur at a closed executive session of the Board if the content of the minutes is attorney client privileged and the matter at hand is on-going.

Q: Assume that Bylaws require a majority of all Unit Owners to increase the number of Board directors above the initial 3 Board directors designated in the Articles of Incorporation. Assume that there have been 7 directors for about 15 years and there has never been a Unit Owner vote to increase the number of Board directors to 7. If the Board becomes aware of this fact, must there either be a (1) new Board election to select 3 Board directors, or (2) amendments to the governing documents to allow for 7 Board directors?

A: Yes, you will need to amend the Bylaws to allow for a 7-person Board. In the meantime, 4 of the current 7 will need to resign from the Board until the Bylaws are amended. If 4 of the current 7 will not agree then I think you should have a new election for 3 seats.

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Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit our website www.gadclaw.com, or to ask questions about your issues for future columns, kindly send your inquiry to: question@gadclaw.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.