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Board Cannot Vote by Email

Q: My condominium association recently engaged an attorney and a question has come up as to whom the attorney represents, the association, the board members, the management company, the owners, or all of the above. Who is the attorney’s client? (G.F. via e-mail)

A: The attorney represents the association as a corporate entity and does not personally represent any individuals or entities related to the corporation including the board members, the manager, or the individual owners.

This distinction is illustrated by the fact that the applicable statutes expressly exempt all records protected by the attorney-client privileged from those records open to inspection and copying by owners. Therefore, while owners may feel they “pay for the attorney” (and they do), they are generally not entitled to have access to legally privileged documents.

Additionally, the courts have ruled in the face of a conflict of interest assertion, that the association’s attorney is not precluded from suing a unit owner because the attorney does not represent that owner. The same holds true for the individual board members and management. The attorney takes direction from the board of directors, or from management as directed by the board, because that is how corporations operate.

Q: The board of directors of my homeowners’ association often sends notice of board meetings by e-mail, but just a couple of hours before a meeting. Is this legal? (C.V. via e-mail)

A: It is not illegal, but also is not legally sufficient notice. The Florida Homeowners’ Association Act provides that unless the association’s bylaws or other governing documents state otherwise, notice of board meetings must be conspicuously posted in the community 48 hours in advance. If notice is not so posted, notice must be mailed or delivered to each member at least 7 days before the meeting, except in an emergency. It should also be noted that in certain circumstances (such as the adoption of assessments and some types of rules), written notice must be sent to the members at least 14 days in advance.

Q: I am the vice president of our condominium association. With the exception of me, all of our directors leave Florida for northern homes in April, and most do not return until November or later. For six months of the year, I am the only director on the premises, and am asked to make decisions that I am not always comfortable with. We have developed a practice where these decisions are made by the board as a whole through e-mail. Is this legal? (J.G. via e-mail)

A: It depends. Section 718.112(2)(c) of the Florida Condominium Act specifically provides that members of the board may use e-mail as a means of communication, but may not cast a vote on an association matter via e-mail. Therefore, if a matter requires a vote of the board, it cannot be decided by e-mail.

However, many day-to-day decisions of an association do not require a board vote, particularly when implementing matters which have already been authorized by the board. If you want to get input from your fellow board members on a particular course of action in that type of situation (and it is not a formal board vote), then I think that it legally permissible.

There are certain actions which may specifically require approval of the board under your condominium documents. You may wish to consult with the association’s legal counsel as to the extent to which those approvals can be delegated to an individual officer, a committee, or management. This is a bit of fine line.

I would also point out that there remains an open question under the law as to whether internal board discussion e‑mails are part of the official records of the association, and thus subject to inspection by owners.

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

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