Emergency Voting by E-mail Questioned

Q: I am on the board of my condominium association, and we are in the process of repairing our building following damage from Hurricane Ian last year. The board of directors must make numerous decisions regarding the reconstruction process. To facilitate the reconstruction, the board has been using an online system where each board member can login to review the pending issues and mark their agreement with the decision. Can the association use this type of system to facilitate the decision-making process following such a catastrophic event? (D.F., via e-mail)

A: No. While the board of directors of the condominium association can communicate by e-mail or other electronic means, board members cannot vote by e-mail according to Section 718.112(2)(c) of the Florida Condominium Act. Formal votes may only be taken at board meetings.

If there is concern regarding the ability of the association to expeditiously make decisions, the board has a several options to consider.

Some associations set up regularly scheduled, standing board meetings such as weekly or bi-weekly. While this would not be customary in a normal course of events, the volume of work and decisions that need to be made in an undertaking of this scope may make this a good choice.

With the assistance of legal counsel, the board should review what actions actually require a vote of the board. For example, if there is a defined scope of work and the decisions are more in the nature of implementation, the board could delegate decision making authority to one officer, such as the president. If that person has decision-making power, the law would not prevent him or her from keeping board members in the loop by e-mail and obtaining support, opinions and input in that manner.

Although Hurricane Ian is approaching its one-year anniversary, many condominiums are still in a state where the exercise of emergency powers may be justified to some extent. The statutes do relax notice requirements when there is a legitimate need, but the regular laws cannot be ignored completely. I would recommend that the association ask its counsel for guidance on how much leeway exists given the conditions in your community to invoke emergency procedures that shortcut general notice laws.

Q: What constitutes “attendance” at a meeting for members of the board of directors of a homeowners’ association. Are board members permitted to attend by video conference or speaker phone, or do they have to personally attend at a meeting to be counted? I could not find anything in the HOA statute about this. (P.B., via e-mail)

A: You are correct. Chapter 720 of the Florida Statutes, the Florida Homeowners’ Association Act, does not regulate this issue. However, most homeowners’ associations are corporations not-for-profit, also governed by Chapter 617 of the Florida Statutes, the Florida Not for Profit Corporation Act.

Section 617.0820(4) of the Florida Not for Profit Corporation Act, states that unless the articles of incorporation or bylaws provide otherwise, the board of directors may permit any or all board members to participate in board meetings using any means of communications by which all directors may simultaneously hear each other during the meeting. A director participating by such means is deemed to be “present” at the meeting as if they were in person, are counted toward the quorum, may participate in discussion, and may vote.

Chapter 718 of the Florida Statutes, the Florida Condominium Act, does address this issue. Section 718.112(2)(b)5., Florida Statutes, states that board or committee members may participate in a meeting via telephone, real-time video conferencing, or other similar real-time electronic or video communication. Such members attending a board or committee meeting through such means are considered physically present and may also vote on any issue that is brought before the board or committee.