STUART, Fla. – Feb. 27, 2017 – Question: Our Board of Directors disagrees over whether we are required to record our meetings, and if not, should we? – B.D., Stuart
Answer: This is a common question and the first answer is no, the Board is not required to audio record or video record its meetings. Many associations will record meetings to ensure the minutes are accurate and then discard the recording. I generally advise against keeping recordings because the recording normally can’t be used in court to support your position, so the real result of keeping a recording is to highlight any errors or misstatements. The Board should take extra care to ensure the written minutes reflect the actions at the meeting.
The follow up question is usually whether owners are allowed to record Board meetings. The short answer to that question is yes, owners are guaranteed the right to record meetings. The statutes and applicable administrative code provisions permit the association to adopt reasonable rules, such as a rule requiring all recording devices be placed in a specific area, but the rule may not prohibit recording.
Question: My condominium association just replaced the furniture at the pool area. Frankly, the old furniture was still in great shape and the new furniture is not very attractive. Should the membership get to vote on such decisions? – H.L., Fort Pierce
Answer: The answer will require an analysis of your condominium documents, but the arbitration cases on pool furniture provide that new furniture can constitute a material alteration requiring the membership to approve the change. Broadly, a material alteration is a palpable or perceptive change in the use, appearance or function of the common elements or association property. To change the pool furniture from bronze to white frames, for example, would materially change the appearance of the association’s common property.
Florida Statutes section 718.113 requires the membership to approve this change and often times the specific approval threshold is located in your governing documents. If the documents are silent, 75 percent of the membership must approve the change.
You need to carefully review the documents, however, because many condominium documents circumvent membership approval when the cost of the material alteration does not exceed a certain dollar threshold. For example, some documents will allow the Board to alter the common elements provided the cost does not exceed $30,000. In this example, if the pool furniture cost less than $30,000, it may not require membership approval despite the fact that the change is a material alteration.
Question: At my condominium election, owners were filling out ballots and turning in the ballot without any envelopes. I wanted to vote by secret ballot and felt uncomfortable when I handed in my ballot and the Board could see how I voted. Don’t condominiums vote by secret ballot? – G.H., Treasure Coast
Answer: Yes, absolutely, and whether you vote by mail or whether you vote in person at the meeting, Florida law requires all votes to be cast by secret ballot. If you utilize electronic voting in your community, obviously you could get behind a computer and cast your vote through the voting software. If not, the Association is required to hand you the ballot along with the ballot envelope and the outer envelope so that you can cast your ballot without the Board seeing your vote.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.
© 2017 Journal Media Group, Steve Adamczyk