Posted on June 9, 2009 by Marilyn Perez-Martinez

Are E-mails, Instant Messages (IM), & Twitter Transcripts "official" records of the Association?

On March 30, 2009 the Division issued a Final Order in Humphrey v. Carriage Park CAI a case involving among other things a request for records where the owner sought “all correspondence, e-mails to or from the Department of Business and Professional Regulation.”

In its ruling the Division stated that there was no violation for failing to produce e-mails which never became the official records of the Association.  The Division explained:

 

 

  • The property of an individual director does not become the property of the Association because of his office on the Board.
  • Even if directors communicate among themselves by e-mail strings or chains, about the operation of the Association, the status of the electronic communication on their personal computer would not change.
  • An e-mail to an individual or all directors as a group, addressed to their personal computers, is not written communication to the Association because there is no obligation for a director to turn on a personal computer with any regularity, or to open and read e-mails before deleting them.

The Division in a footnote to its opinion stated a different decision could be reached “if the Association owns a computer on which management conducts business including e-mails…; or if e-mails are printed up and passed around for discussion at a board meeting.”

Given the ever changing trends in technology and the manner in which Associations conduct business, a Board needs to be wary that the status of e-mails as official records despite the Humphrey decision is still in flux. In other words, tomorrow, these very same e-mails which today are not official records could be. Also while a link has never been made equating IM or Twitter transcripts to e-mails this too could change as these forms of e-communication become more and more popular amongst Board members.

For more information on the role of e-communications and Association look at my May 12, 2009 post or the recent article by the Sun-Sentinel titled Boards a-Twitter about laws.

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Posted on April 29, 2009 by Kevin Edwards

WHERE THERE'S SMOKE ...

Just how far can a Board go in placing restrictions upon an owner’s ability to smoke in a condominium association? Many Boards want to prohibit smoking in or upon the common elements. Some Boards want to prevent owners, tenants and guests from smoking within the units.

With several states (including Florida) having recently banned smoking in public places, this issue has been the topic of much conversation among condominium directors. There is no appellate case decision in Florida to guide us here. However, this author believes that an association can, through an amendment to the Declaration of Condominium, prohibit smoking within the condominium common elements and the units. In fact, the Board could probably do it by adopting a rule which, in most cases, wouldn’t even require a membership vote.

The Florida Clean Indoor Air Act (“the Act”), contained within Chapter 386 of the Florida Statutes, provides a uniform state-wide code to keep public places and public areas reasonably free from tobacco smoke. The Act prohibits people from smoking, except in designated smoking areas contained within the common elements. However, association’s can never permit smoking in the common element hallways, corridors, lobbies, aisles, water fountain areas, restrooms, stairwells, entryways, or conference rooms. All other indoor “common areas” are also “no smoking”, unless the Board has specifically designated the area as a smoking area. Smoking may occur outdoors unless the Board has adopted a no smoking policy with respect to outdoor areas.

The law is not clearly developed as to whether Boards may prohibit unit owners or tenants from smoking inside the units. There is no Florida appellate case that interprets the Act to allow the prohibition of smoking inside a unit. However, case law in other jurisdictions have affirmatively upheld restrictions against smoking in a home and have awarded damages as a result of second hand smoke, under certain circumstances. For example a California Court issued a restraining order prohibiting an owner from smoking in his garage, as the smoke permeated into a neighboring condominium unit. Similarly, a Florida Circuit Court entered a ruling allowing a neighboring unit to recover damages for nuisance, trespass and breach of the covenant of quiet enjoyment as a result of second hand smoke, even after the homeowner installed a purifier and the association installed a mechanical fan designed to prevent smoke from entering neighboring units. Further, in 2007 a California city enacted an ordinance that prohibits smoking in apartments, condominiums, and townhouses that share a common floor and ceiling. Under the ordinance, such owners must include no-smoking provisions in all new leases and renewals of existing leases. So, the concept of completely banning smoking in one’s own home is not that far-fetched.

 

Florida law provides that restrictions within a condominium declaration are presumed to be valid and enforceable as long as they are not wholly arbitrary in their application, in violation of public policy, or abrogate some fundamental constitutional right. The question of whether smoking in the home is part of a fundamental constitutional right has not been addressed by the United States Supreme Court. However, in 1995, the Florida Supreme Court ruled that there is no state or federal constitutional right to smoke when it decided that a governmental entity could refuse to hire smokers. See Kurtz v. City of North Miami, 653 So.2d 1025 (Fla. 1995). Thus, until there is a determination otherwise, it is reasonable to believe that restrictions against smoking, if created through an amendment(s) to the declaration of condominium (with the requisite membership approval), are valid and enforceable.

In fact, the Board on its own could probably even adopt a rule that prohibits smoking in the units (which typically does not require a membership vote) because such a rule relates to the health, safety and welfare of the unit owners. Like they say, where there’s smoke there’s fire.

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Posted on April 6, 2009 by Marilyn Perez-Martinez

Can a Director Sit on More than One Association Board at a Time?

Recently I was asked whether it would be a conflict of interest for a director to serve on both an association and master association at the same time.   Assuming the governing documents of both the association and master association do not prohibit this, one must look to Florida Statutes to determine permissibility.

Florida Statute 617.0802 provides a basic set of criteria for a person to be eligible to sit as a director on a board. The most important thing to know though is that it defers to the governing documents of the corporation for limitations on who can hold such a position. In other words if an association’s governing documents require a person be a member of the association to serve on the board then it trumps the premise under Section 617.0802(1) that a director need not be a member of the corporation. 

In a Homeowner's Association setting [720.306(9)] all members of the association shall be eligible to serve on the board of directors while in the Condominium setting [718.112(2)(d)(3)], directors can be unit owners or other eligible persons. Ownership of a property is not required by statute, but the governing documents may impose ownership or membership criteria.

Once a director, the person shall pursuant to Florida law [617.0830; 718.111(1)(d)] discharge his or her duties:

  • In good faith;
  • With the care an ordinarily prudent in the same position would use; and
  • In a manner he reasonably believes to be in the association’s best interest

Director conflicts of interest are also addressed by Florida Statute [617.0832]. Whenever there is a relationship or interest between a director of an association and a person or entity the association is doing business with there exists a conflict of interest.   The conflict in and of itself does not or invalidate the agreement if:

  • Disclosure was made to the board or committee which authorized, approved, or ratified the agreement (the vote of the director with the conflict is not counted); 
  • Disclosure was made to the members entitled to vote on the agreement and they authorized, approved, ratified it; or 
  • The agreement is fair and reasonable as to the association at the time it is authorized by the board, committee or members. 
  • In the Condominium the setting the following additional criteria [718.3026(3)] apply to avoid conflicts:
  • The disclosures to the directors shall be entered into the written minutes of the meeting where they are made; 
  • Approval of the agreement shall require an affirmative vote of 2/3 of the directors present; and
  • The disclosure to the members shall be made at the next regular or special members meeting after the agreement is made.

Going back to the question at hand, it appears that there is no language in the Florida Statutes which prohibits a director of a master association from sitting on a sub-association’s board or vice versa. 

For information on master associations and their elections, read Master Associations Required to Elect Board by Joe Adams.

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