Can the Directors and Members of Your Community Association Meet and Vote Remotely?

During the COVID-19 pandemic, people and businesses alike struggled to meet, organize, and otherwise conduct business in person due to quarantine measures and social distancing policies. In light of these challenges, in 2021, the Florida Legislature enacted laws to make clear that, during a state of emergency, condominium, cooperatives, and homeowners’ associations are authorized to conduct board meetings, committee meetings, elections, and members meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication. As a result, many community associations have become accustomed to remote functionality and utilizing popular real-time video conferencing software such as “Zoom” for the purposes of organizing meetings of members and Directors alike. However, now that the pandemic state of emergency has come and gone, can the Directors and members of your community association continue to meet and vote via Zoom or similar remote methods?

In today’s internet age, there are countless reasons that your community association may benefit from authorizing remote access to the meetings of Directors and members. In fact, the availability of remote access alone tends to lead to, at the very least, a positive feeling of increased transparency among the community, due to the ease in which the ongoings of the association can be broadcast and discussed. For the same reason, remote access may also benefit communities that often struggle to obtain the participation of “snowbirds,” or unit owners that only reside in Florida part time. In addition, access software such as Zoom can aid property managers and Directors to control the presentation and flow of a meeting. Furthermore, remote access may reduce traditional expenses associated with in-person meetings, such as travel time for attorneys.

Florida Statutes do provide ways in which Directors and members of a community association may meet and vote remotely in the course of ordinary business. The primary laws that govern condominium, cooperatives, and homeowners’ associations, Chapters 718, 719, and 720 of Florida Statutes, expressly provide that Directors attending a meeting remotely not only count towards a quorum, but may also vote as if physically present, subject to a few requirements in regard to their remote attendance.

Specifically, Fla. Stat. § 718.112(2)(B)(5), governing condominium associations, provides as follows:

5. A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting.

Likewise, Fla. Stat. § 719.106(b)(5), governing Cooperatives, provides that:

5. A board member or committee member participating in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person, as well as by any unit owners present at a meeting.

Similarly, Fla. Stat. § 617.0820(4), governing Homeowners’ associations, provides that:

(4) Unless the articles of incorporation or the bylaws provide otherwise, the board of directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.

The foregoing provisions do not apply to the members of the community associations; they only apply to association board members. Nevertheless, Chapter 617, Florida Statutes, the Florida Not For Profit Corporation Act, which includes condominiums, cooperatives, and homeowners’ associations, provides that members attending meetings remotely may be counted for quorum and voting purposes, subject to certain requirements.

Specifically, Fla. Stat. § 617.0721(3) provides as follows:

(3) If authorized by the board of directors, and subject to such guidelines and procedures as the board of directors may adopt, members and proxy holders who are not physically present at a meeting may, by means of remote communication:

(a) Participate in the meeting.

(b) Be deemed to be present in person and vote at the meeting if:

• The corporation implements reasonable means to verify that each person deemed present and authorized to vote by means of remote communication is a member or proxy holder; and
• The corporation implements reasonable measures to provide such members or proxy holders with a reasonable opportunity to participate in the meeting and to vote on matters submitted to the members, including an opportunity to communicate and to read or hear the proceedings of the meeting substantially concurrent with the proceedings.

If any member or proxy holder votes or takes other action by means of remote communication, a record of that member’s participation in the meeting must be maintained by the corporation in accordance with s. 617.1601.

Notwithstanding the above, community associations should be aware that the forgoing provisions do not authorize remote only meetings in all instances. Community associations should always try to provide a physical location for meetings so that those individuals who are unable to attend meetings remotely, or otherwise wish to attend in person, can do so. Florida law is clear that, absent a few narrow exceptions, the meetings of Directors and members must be open to all members.

Furthermore, the foregoing provisions do not apply to all meetings or instances where business of the community will be conducted. For example, election of Condominium and Cooperative Directors cannot be processed remotely. Among other reasons, Florida law is clear that the votes submitted for such Directors must be processed and counted by an “impartial committee” in the “presence” of unit owners during the annual meeting and elections of the community association. While these same requirements are not found in Chapter 720, Florida Statutes, in regard to election of homeowner association Directors, from a practical point of view it is very difficult, if not impossible, to conduct elections with nominations from the floor and the counting of physical ballots.

Lastly, because community associations are also governed by their respective Governing Documents, always consult with your attorney to determine if, and to what extent, the community association’s Governing Documents allow remote participation in meetings. Governing Documents that were drafted fifty years ago may not even address the issue. On the other hand, Governing Documents may expressly require that members or Directors may only participate and vote in meetings via proxy or in person. To the extent that Governing Documents conflict with the foregoing Florida Statutes, your community association may need to amend its Governing Documents, or take other actions, to ensure that remote meetings can be held in full compliance with Florida law.

As always, if you have any questions regarding the above, the Association should consult with its legal counsel.