Q. I’m curious about this, and I live in a co-op versus a condo. Is there such a law in Florida that allows us to conduct a meeting without having reached a quorum? This situation occurred recently. We need more than 50 percent of the vote and certain shareholders refuse to attend meetings. We don’t have a co-op board and cannot elect one. The old board members, still in place, have moved out of state, and we cannot hold elections. The local housing court indicated that we should vote to get a new board in place by the end of the year. Is there anything we can do legally?
—AWOL in Aventura
A. “Unfortunately, we do not have the benefit of reviewing your association’s specific documents when answering your inquiry,” says attorney Michael L. Hyman, a shareholder attorney with the Miami-based law firm of Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A.
“Your inquiry reflects that the directors have moved out of state. Do they remain as shareholders? Do you have contact numbers for them? Do they desire to remain on the board? If these out of town directors choose to resign or are no longer applicable to serve on the board, then they have abandoned their position on the board and a vacancy exists. However, if a single director remains, this director can appoint new board members to operate the association.
“With regard to the portion of your inquiry as to whether a meeting can be conducted without a quorum, Florida Statute 719.106(1)(b)(1) provides: Quorum; voting requirements; proxies.—Unless otherwise provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be a majority of voting interests, and decisions shall be made by owners of a majority of the voting interests. Unless otherwise provided in this chapter, or in the articles of incorporation, bylaws, or other cooperative documents, and except as provided in subparagraph (d)1., decisions shall be made by owners of a majority of the voting interests represented at a meeting at which a quorum is present.
“Florida Statute 719.106(1)(b)(2) further provides, inter alia, that: “Limited proxies and general proxies may be used to establish a quorum. Limited proxies shall be used for votes taken to waive or reduce reserves in accordance with subparagraph (j)(2)., for votes taken to waive the financial reporting requirements of s. 719.104(4)(b), for votes taken to amend the articles of incorporation or bylaws pursuant to this section…Except as provided in paragraph (d), after January 1, 1992, no proxy, limited or general, shall be used in the election of board members.
“Additionally, Florida Statute 719.106(d)(2) provides: “Any approval by unit owners called for by this chapter, or the applicable cooperative documents, must be made at a duly noticed meeting of unit owners and is subject to this chapter of the applicable cooperative documents relating to unit owner decision making, except that unit owners may take action by written agreement, without meetings, on matters for which action by written agreement without meetings is expressly allowed by the applicable cooperative documents or law which provides for unit owner action
“Therefore, for certain cooperative issues other than elections of the Board of Directors shareholders may attend in proxy or a decision may be permitted by written agreement.
“With regard to the issue involving your Board of Directors, Florida Statute 719.106(1)(d)(6) addresses vacancies on the board and provides:
“Unless otherwise provided in the bylaws, a vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must confirm to the requirements of subparagraph 1. Unless the association has opted out of the statutory election process, in which case the bylaws of the association control.
“Once a new board is in place, the board may make an effort to amend the association’s governing documents to lower the quorum required for an election, so that a quorum can be reached and the association does not continue to find itself in the current dilemma.”