Q: I am member of my condominium’s Board of Directors. Our Directors are in constant contact via e-mail in the weeks leading up to our quarterly meetings and our manager keeps us informed via email. I am concerned that I have seen some comments in emails that are not appropriate for distribution to the membership and our email discussions are so thorough that the membership does not get the whole picture at the meeting. Is this legal?
T.D., Marco Island
A: This is a great and frequent question, and the answer will depend on who you ask. The Florida Statutes provide that “members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail.” Thus, the legislature has essentially blessed the use of email between Directors as a means of communication and discussion, provided the discussion does not result in an actual vote.
The next part of the analysis involves the Association’s obligation to keep records. Through a series of administrative decisions and publications, Florida law currently provides that emails between Directors on their private computers and private email addresses are not official records, meaning the Association has no obligation to maintain these records. There is an exception to this rule when the property manager is part of the email communication, but email chains solely between Directors are not official records.
The final part the analysis is determining whether the use of email in this context violates any meeting and notice requirements. If all of the Directors are sitting at their computers at the same time clicking “send” and reading responses, how is that different from a Board meeting where the Directors are behind a table discussing business? There are varying opinions on the answer to this question, but relying on the various legal guidance now indicates that the use of email does not constitute a meeting.
Because email is so easy to forward or add participants, I advise clients that they should anticipate that anything they write in an email will become public knowledge. Further, I recommend that any e-mail discussion be summarized prior to any vote on the subject for the benefit of owners attending an open Board meeting seeking to participate in the discussion.
Q: Our community is reviewing its current bulk cable agreement and there is a rumor that the Board will be adding internet to the contract. Some of us are very happy with our internet service and do not want the bulk provider. We are also skeptical of rumors that the provider is compensating the Association to enter into this transaction. Do we have to go along with this?
A: Florida Statutes section 720.309 provides that a homeowners association may enter into a bulk agreement for information and internet services. Often, there is a significant savings enjoyed through such a bulk agreement for both cable television and internet. Because the statute specifically authorizes the Board to enter into a bulk internet agreement, any contract executed by the Board and providing bulk internet will be binding on all owners. If you want to keep your current internet provider, you may do so, but that will not allow you to avoid paying for your share of the bulk contract authorized by the homeowners’ association.
Concerning compensation, it is very common for cable providers to compensate an association for entering into a long term cable agreement. That compensation should be payable to the homeowners’ association, and not to any individual director, and the association should also exercise care in determining whether any such compensation is taxable income or whether it has other financial ramifications. Generally, these funds are not restricted and can be used by the Board in any lawful manner.
It is rare, but I have seen governing documents specifically limit the Board’s authority for these bulk agreements and therefore I would also recommend a review of your governing documents by a licensed Florida attorney to determine their interaction with the above referenced statute.
Q: Our Bylaws provide that the Board of Directors has the authority to amend the Bylaws without a vote of the membership. I was told any amendment requires two-thirds approval. Which is correct?
A: Assuming the Bylaws provide that the Board can amend without a vote of the membership, this is lawful. It is not very common, but lawful. Florida Statutes section 720.306 for homeowners associations provides that the amendment threshold for any governing document is two-thirds of the voting interests “unless otherwise provided in the governing documents or required by law.” There is a similar statute for condominiums in Section 718.110(1) of the Florida Statutes. Here, your governing documents do provide otherwise by expressly stating that an amendment can be adopted by the Board without a vote of the membership.
Q: My condominium association completely remodeled the fitness room with different color schemes, equipment and fixtures. The membership did not vote on these changes. Can the Board do this?
A.T., Bonita Springs
A: Possibly, but the answer requires a review of the specific condominium documents. To make these changes is probably a material alteration, which is essentially a palpable change to the use, function or appearance of the fitness room. The statutes provide that material alterations must be approved by 75% of the entire membership, but the statute also opens the door for individual condominium documents to provide a lesser approval threshold, if any. So, it is very possible that the Board was able to do this without membership approval because the documents specifically permit the Board to take this action even though it may also be a material alteration. If the documents are completely silent on this issue, the Association may be required to restore the property to its original condition or seek membership ratification, which may also be an undesired result. I would recommend you consult a licensed Florida attorney to review the specific condominium documents at issue and recommend a course of action.