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Associations Have Their Own “Sunshine” Laws

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Question:        I live in a condominium and have heard that The “Sunshine” Law will allow me to speak at an upcoming board meeting. How does this work? (J.B. via e-mail)

Answer:        Florida’s Government–in-the-Sunshine Law sets forth certain requirements for public records and open meeting laws pertaining to governmental proceedings of public boards or commissions. This statute does not apply to community associations, although the statutes applicable to condominiums, cooperatives, and homeowners’ associations each contain their own “sunshine” requirements, generally affording owners the right to attend (and speak at) board meetings and obtain copies of association records, among other things.

Meeting “sunshine” laws apply when a quorum of the association’s board (and certain committees) simultaneously gather to “conduct” association business. It is not necessary for voting to take place in order for business to be conducted. The Florida Condominium Act provides that notice of board meetings must be posted on the condominium property at least 48 hours in advance, and are open to all unit owners, who may also record or videotape such meetings. Unit owners have the right to speak at meetings of the board, with respect to all designated agenda items. A condominium association may also adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.

Similarly, the Florida Homeowners’ Association (“HOA”) Act grants members the right to attend board meetings and the right to speak at meetings of the board with reference to all designated items, as well as the right to tape record or videotape board meetings. Curiously, the HOA Act does not require that there be pre-designated items, as is required for condominiums. An HOA may also adopt reasonable rules governing the right of members to speak and governing the recording of the meetings. For example, an HOA’s rules might require the use of a sign-up sheet for members who wish to speak.

Therefore, you have the right to speak with respect to the designated agenda items at the upcoming board meeting. You should also review your condominium association’s rules to determine if there are additional requirements governing the frequency, duration, and manner of unit owner statements with which you must comply.

Question:        I recently attended a meeting of my condominium association’s board, and they were discussing the upcoming annual meeting. I asked whether I would be able to vote on the internet instead of by paper ballot, which I thought was acceptable now. I was told that currently there is no plan for the association to have electronic voting. Can the board deny me my right to use electronic voting at the annual meeting? (B.A. via e-mail)

Answer:        The Florida Condominium Act, provides a process by which the association can permit members to vote electronically at membership meetings. However, the Act does not provide the right for members to vote electronically and the association is not required to allow it.

Section 718.128 was added to the Act in 2015, and outlines the process for associations to use electronic voting. In addition to providing minimum notice and technical requirements for electronic voting, the Act states that electronic voting is only authorized if the board adopts a resolution providing for electronic voting. Therefore, any association which intends to use electronic voting must first authorize electronic voting through board action. In the absence of such board action, there is no right for unit owners to use electronic voting to participate in association meetings.

There are similar electronic voting provisions in both the Florida Cooperative Act and the Florida Homeowners’ Association Act. Additionally, the Division of Condominium, Timeshares, and Mobile Homes has adopted administrative regulations and rules concerning electronic voting, and those regulations are applicable to condominium and cooperative associations.

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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