Q: My homeowners’ association is currently under developer control. Does a developer-controlled homeowners’ association have to hold open and noticed board meetings? (B.P., via e-mail)
A: Yes. Section 720.303(2) of the Florida Homeowners’ Association Act contains the legal requirements for board meetings. The statue requires that notice of all regular board meetings be posted in the community at least 48 hours in advance of the meeting. Additionally, members have the right to attend all board meetings, and speak to all designated agenda items. There is no exception to these requirements for developer-controlled associations.
Additionally, any committee or similar body that has the authority to make final decisions regarding the expenditure of association funds or any body vested with the power to approve or disapprove architectural decisions with respect to specific parcels of residential property must also hold open and noticed meetings.
There are two exceptions to the requirement that meetings be open to owners. The first exception is when the board is meeting to discuss personnel matters. The second exception involves meetings with the association’s attorney with respect to proposed or pending litigation. These meetings may be closed to the members.
Q: My condominium association is considering installing a heater on the pool. Is adding a heater to the pool a material alteration that requires unit owner approval? (C.W., via e-mail)
A: Installing a pool heater to the condominium’s pool, where there currently is not one, would be a “material alteration” of the common elements. Whether a unit owner vote is required will depend on whether your declaration of condominium contains a procedure regarding material alterations. Section 718.113(2)(a) of the Florida Condominium Act states that there shall be no material alterations or substantial additions to the common elements or real property which is association property, except in the manner provided in the declaration, or if the declaration is silent, upon approval of at least 75% of the total voting interests in the association. There is usually one voting interest per unit.
Q: Are written complaints from a homeowner against an architectural review committee/board member considered an open record? Also, may the homeowner against which the complaint has been filed inspect the complaint? (K.Z., via e-mail)
A: Yes. However, the homeowners’ association may have the duty to “redact” (cross out with a marker) personal identifying information contained therein, such as protected personal information.
Section 720.303(4)(1) of the Florida Homeowners’ Association Act contains a “catch all” provision that says “all other written records of the association” are part of the “official records.”
Section 720.303(5) of the statute provides that the official records are open to the inspection and copying by any parcel owner or his or her authorized representative within 45 miles of the community or within the county in which the homeowners’ association is located. The records must be made available within 10 business days after receipt of a written request by the board or its designee. Records exempt from owner inspection rights include attorney-client privileged information, information obtained in connection with the approval of a sale or lease, certain personnel records of the homeowners’ association’s employees or management company employees, medical records and protected personal information. Protected personal information includes, but is not limited to email addresses and any address for the parcel owner other than what was as provided for notice requirements and telephone numbers. The parcel owner’s name, parcel designation, mailing address for notice requirements, and address within the community are not protected.
If a written complaint between a parcel owner and a board or architectural review committee member contains personal identifying information that is protected by the statute, the homeowners’ association should redact that information before making it available to a parcel owner for inspection or copying. However, the statute states that there is no liability to the association in the event of an inadvertent disclosure if the protected information was included in the written complaint by the parcel owner.
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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