Q: My homeowners’ association board has voted on topics that were not posted on the agenda; therefore, homeowners did not know they would be voting on these items. Is this legal? (G.P., via e-mail)
A: In condominiums, a board may not take action on any item at a board meeting unless the item was placed on the posted agenda. However, emergency matters not included on the agenda may be taken up if approved by a majority of the board, plus one, and the item is ratified at the next meeting of the board with proper posting.
The Florida Homeowners’ Association Act does not specifically require the posting of an agenda with the board meeting notice. The statute does require that notice of board meetings where assessments will be considered contain a statement to that effect.
The HOA statute generally requires that notice of all regular board meetings be posted in the community at least 48 hours in advance of the meeting. Owners have the right to attend board meetings, and “speak with reference to all designated agenda items.” This obviously creates somewhat of a void since the statute does not actually require a posted agenda in the HOA context. My interpretation is that the board must allow owners to speak to all items that will be taken up by the board, whether on the posted agenda or not. It is also a “best practice” to have and post agenda items for HOA board meetings and is legally required in condominiums.
Both statutes allow the board to adopt rules regarding owner comment at board meetings. There are several ways to handle this issue, and no particular “best” way. I do believe that the board should allow owner comments before the board votes on the issue, otherwise the purpose of the law is not accomplished.
Q: What Florida law states that homeowners’ association board members must take a certification class within 90 days of being elected to the board of directors? (S.W., via e-mail)
A: Section 720.3033(1)(a) of the Florida Homeowners’ Association Act and Section 718.112(2)(d)4.b of the Florida Condominium Act both require new directors to do either one of two things within 90 days of being elected or appointed to the board.
First, the director can certify in writing that: he or she has read the association’s declaration, articles of incorporation, bylaws, and current written rules and policies; will work to uphold such documents and policies to the best of his or her ability; and will faithfully discharge his or her fiduciary responsibility to the members.
Alternatively, the person can attend an educational class administered by a State-approved education provider and obtain a certificate of satisfactory completion of the class. The class attendance must be within one year before, or 90 days after, the date of election or appointment to the board of directors.
The written certification or educational certificate is valid for the uninterrupted tenure of the director’s service on the board. If a director does not timely file a written certification or educational certificate, he or she is suspended from the board until he or she complies with this requirement.
Certifications are to be made to the board secretary. The association must retain each director’s certification for five years after the director’s election or appointment, or in the case of a condominium association, for the duration of the director’s uninterrupted tenure (whichever is longer). The statute also provides that the failure by the association to retain this documentation as part of its official records does not affect the validity of any board action.
I encourage attendance at the abundance of free educational opportunities offered to association officers, directors, and owners, whether legally required or not.
Joseph E. Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff.
Originally posted on floridacondohoalawblog.com Written by Joseph E. Adams of Becker & Poliakoff, P.A.,