Emails as Association Official Records

Whether you live in a condominium, cooperative or homeowner association, the Statute governing your community defines the term “official records.” In defining official records, each Statute has a catch-all provision.

All other written records of the association not specifically included in the foregoing which are related to the operation of the Association.

Sections 718.111(12), 719.104(2), and 720.303(4), Florida Statutes.

Questions abound, however, as to whether emails are official records. The Department of Business and Professional Regulation (“Division”) has ruled that emails to an association can be considered official records, and are therefore subject to inspection and copying by owners or their representatives. But are all emails “to an association?” Are personal emails between board members official records? What about an owner’s email to a board member’s email address and the board member’s response to that owner – is that considered an official record subject to another owner’s inspection and copying?

Division rulings have held that e-mails to an individual director or to all directors as a group, addressed only to their personal computers, are not written communication to the association and therefore not considered an official record. This is 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.  Irizarry v. Laguna Point Condominium Association, Inc., Arbitration Case No. 08-05-2791 (April 10, 2009/Final Order). This point was further clarified in the arbitration case of Humphrey v. Carriage Park Condominium Association, Inc., Case No. 08-04-0230 (March 30, 2009/Final Order/Campbell), where the arbitrator stated that “any e-mails received by, stored upon, or otherwise contained upon or within the personal computing devices (e.g., computers, laptops, cell phones, tablets, etc.) of Directors shall be considered the personal property of the Director upon whose device said e-mail exists.”  In other words, the email does not belong to the association.

However, the arbitrator in Humphrey went on to state “[t]he conclusion may be different if the association owns a computer on which management conducts business including e-mails (analogous to government public records); or if e-mails are printed up and passed around for discussion at a board meeting.”  In other words, emails to an association’s email address, the manager’s email address or any other email identified as an association email (“@condoname.com”) are considered official records.

It is important to have a clear understanding of and policy in place related to emails such that those that are official records are properly kept and those that are not are properly deleted. There are also exceptions for things such as litigation holds, which must be considered when creating and implementing an email policy.  It is therefore strongly recommended that all associations involve their attorney when formulating their policy.

 

Written by Howard J. Perl and originally posted to FL Condo HOA Law Blog

Owners Generally Do Not Have the Right to Approve the Annual Budget

Q:        Do condominium owners have a say in approving the annual budget? (D.J. via e-mail)

A:        Unit owners do not have the right to adopt or approve a proposed budget as a matter of law. The association’s bylaws will address how the budget is adopted, which is usually by the board. Some condominium documents, particularly older documents, require unit owner approval to adopt the budget. Such a provision is, in my opinion, lawful (though not recommended).

Section 718.112(2)(e) of the Florida Condominium Act, provides that any meeting where the proposed annual budget will be considered shall be open to all unit owners. Notice of the meeting must be provided to all unit owners 14 days in advance, along with a copy of the proposed budget. Owners also have the right to speak at board meetings regarding all designated agenda items.

The statute does provide unit owners with a process to propose an alternative annual budget under certain circumstances, typically when assessments exceed the prior year’s by more than 115%, excluding assessments for reserves and non-recurring items. Also, owners do have some say in the budget process, even where the bylaws give the board the authority to adopt the budget. Specifically, a board cannot adopt a budget without “fully funded” reserves unless a majority of the unit owners voting at a meeting have authorized a waiver or reduction of reserve funding.

Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Originally posted on FL Condo HOA Law Blog

Notice of HOA Board meetings

Q:        Does notice of a homeowners’ association board meeting with an attorney require an agenda to be posted? (W.C. via e-mail)

A:        No. The Florida Homeowners’ Association Act does not require posting of an agenda for any board meeting, only posting notice. I do believe that a notice should be posted, even for properly closed meetings of the board with legal counsel.

In the condominium setting, notice and an agenda must be posted 48 hours in advance of board meetings. Again, I recommend posting a notice even for permissible closed meetings with association counsel. The state agency which enforces the condominium law has made at least one ruling to this effect.

The agenda for closed board meetings should be prepared or reviewed by the association’s attorney to avoid the risk of inadvertent waiver of the attorney-client privilege.

Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Originally posted on FL Condo HOA Law Blog

Website Law Likely to Change

Q:        I have heard that there is a new law requiring condominium associations to have a website. Is that true? (J.L. via e-mail)

A:        Yes, although the law has somewhat limited application. First, it is worthwhile to note that the 2018 Florida Legislature passed a Bill on March 9 that would change the 2017 website law. As of this time, the Bill has not been signed by the Governor, but it is not expected that he will veto the legislation. Once the Governor has acted on the Bill, I will present my annual legislative update.

The 2017 law created a new requirement for any condominium having 150 or more units in total to have a website up and running by July 1, 2018. The new law will change this requirement in several important ways.

For associations which are obligated to comply with the law, the required implementation date will be pushed back to January 1, 2019. Perhaps more significantly, the scope of the law has been narrowed as to which associations it applies to. For example, a multi-condominium association that operates 10 condominiums with 50 units each would have had to comply with the website requirement under the 2017 version of the law. Under the 2018 changes, a multi-condominium association that operates 150 or more units does not need to comply with the mandatory website requirement unless at least one of the condominiums operated by the association contains 150 or more units.

The 2018 amendments also tweaked some of the posting requirements from the original law, allowing posting of summaries of certain documents rather than the documents themselves.

 

Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers Originally appeared on the FL Condo HOA Law Blog

Summer Shut-Down Considerations for Seasonal Communities

If your community is a seasonal one that tends to thin out over the summer months, what rules or policies do you have in place to ensure that your association continues to operate smoothly and transparently over the summer months?
The less crowded summer months in some communities provide an optimal time to pursue important projects related to maintenance, capital improvements and updating your documents. In addition, there are concerns that need to be addressed given the fact that our 6-month hurricane season typically coincides with an increase in the number of absentee owners in your community.
Some of the items your board should consider as the summer approaches include:

 

1.      Rules Related to Absentee Owners.  These rules may require owners who leave their units vacant for many consecutive weeks or months to:
  • Keep their AC on at a certain level to avoid conditions which would encourage mold growth.
  • Shut off water to the unit to avoid leaks.
  • Engage a caretaker to check on the unit at regular intervals to ensure that the unit’s condition is maintained and to afford access to the association for pest control and other services/inspections as needed.
  • Engage a caretaker to close up the unit in the advance of a storm which should include removing all items from the balcony or patio, putting up shutters or other storm protection and returning the unit to its pre-storm condition in a reasonable period of time after the storm passes.
  • Provide updated contact information which the association may use in case of an emergency.
2.      Capital Improvement Projects.  Large projects which impact the common areas, limited common elements and/or the units can be very difficult in a fully occupied building.  The summer months can provide an ideal time to undertake some of these projects when fewer residents are around. Painting, roof replacement, concrete restoration, pool deck renovations, ELSS and other Life Safety installations and lobby/corridor renovations are all projects which naturally involve varying degrees of impact to the quality of life for owners while they are underway. You can stage these projects with your contractors to take into account which units are vacant and when.
3.      Summer Projects.  The summer months often provide an optimal time for long-delayed projects such as a document rewrite. You can establish a Committee of residents who can work with your association attorney to discuss desired changes and the summer months afford you enough time to allow for review of several iterations of the language in order to prepare for a membership vote in the fall or winter months.
4.      Maintain Routines.   Even though the summer months may be quiet in your community, you must maintain a schedule of meetings and steady communication to your members. This is particularly important to ensure that the year-round residents continue to benefit from a fully functioning association. This means that monthly board meetings can and should continue. Out of town board members can attend by speaker phone or Skype.  While your summer meetings may briefer and content for your newsletter may be lighter during these months, maintaining consistent communication is what counts.

 

If all or some of your board members are gone for the summer, it is important that the Directors delineate duties amongst themselves and not overload the one or two board members who may be full-time residents. Even though summer months meant a break from responsibility for many of us when we were students, being a board member is a year-round job so take the proper steps needed to continue to serve your community even during the summer.
Written by Donna DiMaggio Berger originally on the Community Association Law Blog