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Articles Posted in Meetings and Elections

With the passage of a new law in 2015, the Florida legislature made online-based electronic voting an option for the state’s community associations. Many associations have since adopted the use of electronic voting for their meetings and elections, and the supporters thereof have claimed that is has yielded a number of benefits including increased membership participation and improved tracking of owner participation, trends and interests. Here are a few helpful tips for those who are now considering the implementation of electronic voting in their communities.

Boards of directors should first be aware that if they wish to implement an internet-based voting system for the votes of their owners, they must do so in compliance with the statutory procedures applicable to their respective associations, which include the adoption of a resolution supporting the platform at a properly noticed meeting. Once approved, associations should notify the owners of the change as well as the procedures and deadlines for owners to opt-in or opt-out via written responses that are added to its records.

Online-Voting-300x200Florida law requires that community association e-voting systems must be able to authenticate owners’ identities and receive ballots in a manner that ensures their secrecy and integrity. For board elections, the owner-identifying information must be separated from each ballot to render it impossible to tie authenticated ballots to specific owners. The systems must also be able to store and keep electronic votes accessible for recount, inspection and review purposes.

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As the election season begins to get into full swing in anticipation of the upcoming mid-term in November, the polarized nature of today’s political and social environment makes this an important time to remind community association directors and unit owners of the importance of the need for civility and respect in their interactions with their neighbors. These times, when yard signs supporting candidates and social causes/organizations have led to skirmishes and hostilities in connection with past elections, make this an ideal moment to remind stakeholders in communities of the efforts that can be deployed to promote civility among neighbors.

While we are often reminded about the importance of preserving our individuality, it is also vital to remain tolerant of others’ individuality. This concept is even more relevant within community association living – in which many individuals with different points of view, ideals and opinions are required to coexist with each other in a relatively small area, and also to share in the use and upkeep of common facilities. Communities in which owners display high levels of volatility and intolerance may be considered undesirable places to live, where discord may stand in the way of progress.

At the other end of the spectrum, some communities choose to avoid conflicts in situations that could result in the stagnation of progress or in the deterioration of the fabric of the community, possibly even resulting in declining property values.

In light of the potential for adverse results that may arise due to community conflicts, unit owners as well as directors and managers should focus on efforts to advance the objectives of their community while remaining tolerant of differing opinions, approaches and points of view.

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Community association board meetings are where the rubber meets the road for practically all association administrative matters. The agendas for these meetings and the minutes that ensue form a vital record of all the matters that have come before the directors of an association over the course of the entire lifespan of a community. Given the significance of the meetings, it is imperative for effective notes or “meeting minutes” to be kept to document all of the pertinent information from each and every official assembly.

As a general rule, meeting minutes should be thorough, but concise. They are not intended to be a transcript of everything said at a meeting.

Instead, the best approach is to start by listing the date, time and place of the meeting; listing the board members present/absent and additional participants such as the association property manager or attorney; and including the name of the individual taking the minutes. meet-300x166A copy of the agenda and notice should be attached to the minutes.

Once all of that is out of the way, the minutes should include a list of all the issues and reports that were presented and discussed at the meeting. For each issue which resulted in a motion, the minutes should include the exact wording of the motion, the names of the directors who made the motion and seconded it, and whether the motion passed or failed.

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A lawsuit that was recently filed against the Promenade at Boca Pointe Condominium Association highlights the importance of properly adopting changes to an association’s governing documents and recording them in the local court registry where the association is located. If the allegations in the lawsuit hold up in court, the association for the Boca-area community could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.

According to the suit, the association is making up rules to prevent condo owners Gerardo and Ana Vizcaino from leasing their unit for a full year. The suit states that the association’s new rule, which it apparently adopted at an August 2020 board meeting after a simple vote of the board the directors, was never approved by the members by a formal vote.

Indeed, the suit alleges that the association president acknowledged in a notice to all of the unit owners that the board’s adoption of a rule restricting rentals to one tenant per 12-month period was invalid because it had not been approved by the unit owners via an amendment to the governing documents. The only restriction in the association’s recorded declaration pertaining to rentals states that owners are only restricted from renting units for terms of less than thirty days. No other restrictions are included in the recorded governing documents.

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Community associations often struggle with securing a quorum, which is the minimum number of voting interests required to be present in order to conduct a meeting of the members, and this challenge has been exacerbated by the pandemic. One of the most effective ways for associations to secure enough votes from unit owners to achieve a quorum and conduct their business is through the use of proxies.

A proxy is a document that allows a designated individual to attend and participate in a meeting in place of a unit owner. Florida condominium laws provide that unit owners may not vote by “general proxy” but may vote by a “limited proxy” that substantially conforms with the form provided by the state’s Division of Condominiums, Timeshares and Mobile Homes.

meeting-vote-300x300Limited proxies for association votes must contain a specific statement of what the unit owner is voting on and how the unit owner is voting. A unit owner cannot vote on specific substantive questions by a general proxy, which can be used only for the purposes of establishing a quorum and non-substantive votes, e.g., the approval of minutes, adjournment or continuance of meetings, and other matters that do not specifically require a limited proxy.

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Recent news reports chronicle the tale of a former Marco Island city council member who was charged with three counts of forgery of a ballot envelope and three counts of criminal use of personal identification information, which is third-degree felony, in his condominium association’s annual board of directors election.

The reports from the Naples Daily News and several Southwest Florida television stations indicate Victor Rios, 78, was charged with forging ballots for the Belize Condominium Association election to remain a board member. Several ballots for the property’s March 2019 condo election were cast under the names of residents who testified that they had not voted in the election, and their signatures on the outer ballot envelopes were forgeries.

FDLElogo-150x150Complaints alleging election fraud were filed with the state’s Division of Condominiums under the Department of Business and Professional Regulation, and with the Marco Island Police Department. MIPD subsequently asked the Florida Department of Law Enforcement to investigate the matter because Rios was a sitting city council member at the time.

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With the Covid-19 vaccines now rolling out across the country, there is hope that in the coming months gatherings of individuals who have been inoculated could safely take place. In the meantime, many community associations are continuing to conduct virtual meetings with attendees participating online or via telephone conference.

However, various provisions of the laws governing Florida condominium and homeowner associations raise questions regarding whether such virtual meetings are being conducted in a manner that is in full compliance. For instance, applicable condominium laws stipulate that annual meetings of the unit owners for board member elections must be held at the location provided in an association’s governing documents or, if none is specified, within 45 miles of the condominium property. This leads to the question of whether purely virtual annual meetings comply with the law.

The unprecedented circumstances arising during the pandemic has therefore caused many community association managers and board members to become creative – seeking to achieve continuity of association business vis-a-vis director and member meetings while also seeking to balance the protections recommended by healthcare providers and health authorities. One example is that some associations, in an effort to ensure that a condominium’s virtual annual meeting complies with the law, have made arrangements for the board of directors’ meeting to convene physically on association property while allowing members to attend via Zoom or other platforms.

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The coronavirus pandemic has created a lot of uncertainty for community associations throughout Florida, especially concerning meetings and amenity use.  Management professionals and board members are left struggling between protecting their residents by taking measures to limit the spread of the virus and continuing to conduct business as usual.

We share your concerns about the COVID-19 outbreak and the impact that it may have on our community. We urge that everyone continues to turn to the CDC and other qualified health professionals as their primary source of information and guidance. As we navigate these unchartered waters together, we ask that our clients stay calm and take rational courses of action to safeguard their communities and addressing situations properly while protecting their association from a potential claim.

As the CDC continues to encourage “social distancing,” many associations are left wondering whether or not they should be moving forward with duly scheduled meetings. Board members and property managers should evaluate the importance of the action items being discussed or voted upon before making any determinations on cancellations. Boards that are concerned about having in-person meetings should consider holding virtual meetings in conjunction with or in place of in-person gatherings.

Social gatherings in clubhouses and recreational facilities are also a cause of concern. We discourage clients from limiting the number of guests that residents can invite or trying to impose intrusive policies such as checking temperatures prior to allowing entry to the community. When in doubt, contact association counsel for a legal opinion.

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Nicole-Kurtz-2014-200x300The firm’s Nicole R. Kurtz authored an article that was featured as the guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “New Laws Spurring Florida Community Associations to Implement E-Voting, Websites,” focuses on the recent changes in state law allowing community associations to implement electronic voting and requiring condominium associations with 150 units or more to have a website containing digital copies of certain official records.  Her article reads:

. . . The condominium association website laws mandate that compliant websites should have been operational as of Jan. 1 of this year. The laws call for association websites that are accessible only to unit owners and employees where certain notices, records and documents are posted. These must include the declaration of condominium, bylaws, articles of incorporation, rules and regulations of the association, as well as all executory contracts or documents to which the association is a party, or under which the association or unit owners have an obligation or responsibility.

dbr-logo-300x57Condominium association websites must also feature the association’s annual budget and proposed annual budget; financial reports; monthly income or expense statements; copies of bids, or summaries of bids, exceeding $500; association meeting notices, and board member certification forms.

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All too often, the other community association attorneys at our firm and I are asked for help on how to prevent unruly behavior from disrupting board and owner meetings. Since items addressed at these meetings generally have a significant impact on the welfare of an association and the financial responsibilities of its owners, conversations dealing with topics such as special assessments and annual elections can quickly become contentious. The following are helpful tips on how to try to keep your meetings on track and in order:

  1. Use Robert’s Rule of Order – This common form of parliamentary procedure for meeting protocol allows meeting facilitators to manage time effectively, all while ensuring that everyone stays on topic. Many people are already familiar with this method, making it easy for participants to follow and respect the meeting procedures that are in place.

meet-300x1662. Be specific about who can attend – The association should establish rules determining who can participate in advance of the meeting. Generally, owners, or owners and residents are the only people allowed to participate in such meetings. Counsel for an owner is likewise permitted to attend.

3. Make the purpose of the meeting clear – Prepare an agenda that outlines the specific items that will be discussed. Be sure to be transparent about the topics, providing participants with any supplemental documents they may need to make educated decisions.

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