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Sunshine Law Applies to Interviews

Q:        Recently my condominium association’s board held interviews with proposed new landscaping companies. All of the board members were present for the meetings. However, there was no notice posted and unit owners were not invited to attend. When questioned, the president of the board said that it was not a board meeting, but simply interviews and no decisions were made. Is this appropriate? (J.C. via e-mail)

A:        Probably not. Section 718.112(2)(c) of the Florida Condominium Act contains the requirement that all board “meetings” be properly noticed, and states that unit owners have the right to attend board meetings and speak to all agenda items. While there are certain exceptions to the requirement of having open meetings, such as meetings with the association’s attorney to receive attorney-client privileged advice concerning proposed or pending litigation, or where the board is meeting concerning personnel matters, all other board meetings must be open to the unit owners.

The statute is almost universally interpreted to apply to any gathering of a quorum of the board where association business is conducted. There is no requirement that motions be made or votes be taken for a meeting to occur.

In my opinion, if a board is meeting to interview potential vendors and a quorum of the board is present, business is being conducted and this would be a meeting, subject to the statutory requirements.

Q:        Can I appoint someone who is not a member of my homeowners’ association as my proxyholder for our upcoming annual meeting? (P.H. via e-mail)

A:        Maybe. The answer will depend on the language of your association’s bylaws.

Section 720.306(8) of the Florida Homeowners’ Association Act addresses the requirements for proxy voting. The statute provides that proxies must be signed and dated, and must state the date, time, and place of the meeting for which the proxy is being given. A proxy can be revoked at any time by the individual who executed it.

The law does not address proxyholder eligibility requirements. The association’s bylaws may provide additional requirements, such as a requirement that proxyholders must be members of the association. Such a provision would be legally enforceable. Absent such a restriction, anyone would be entitled to serve as your proxyholder.

Q:        The board of directors of my condominium association recently stated that they had hired a CPA to prepare the association’s tax return. I am confused because the association is a not-for-profit corporation. Why would it have to file a tax return? (D.O. via e-mail)

A:        While most condominium and homeowners’ associations are organized as not-for-profit corporations under Chapter 617 of the Florida Statutes, some are for-profit corporations organized under Chapter 607 Florida Statutes. Regardless, condominium associations are not tax exempt organizations, like a church or charity. Not-for-profit corporations have to file a tax return and pay taxes on income they have received throughout the year.

Generally, income that the association derives from the payment of assessments by owners is not taxable.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@bplegal.com. Past editions may be viewed at floridacondohoalawblog.com

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