Q&A: The Board Is Not Above-Board

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Q. I was elected to be a member of the board of directors of a condo where I own a unit that my family uses as our vacation home. I was determined to get on the board because I was aware of many problems that had been happening since the time that I bought my unit five years ago. I have some serious concerns as to how things are handled and how the board conducts themselves. I know of other board members that got off the board due to how things were handled and others that have moved out of the complex due to what they have witnessed. I have been informed by these people that three board members have been making all the decisions for many years, which is another reason I wanted to become involved as I know this is not in the best interest of all unit owners—it’s not transparent and it’s a monopoly as they only allow five board members. I encouraged the board to increase to seven members—as there is no limit—which they did temporarily, but I have been advised that the same three people have changed it back to a maximum of five board members which gives them control again. Since I was elected six months ago, they have not held a meeting and they have only asked me to send two letters to one owner who constantly breaks the rules. I know they are still making decisions among themselves with no communication with myself by email or phone and no meetings. I know they speak on the phone to each other regularly as they have advised me of that, but they have not given their phone numbers to me. I would very much like to learn exactly what the legal obligations and responsibilities of a board member are in the state of Florida (so that I can comply and protect myself as a board member), but also I would like to find out who I can talk to about what is happening in our condo association, the behavior of the current board members that have been the same for many years, and how we can ensure that our board is complying with everything legally and ethically.

                            —Director in Distress

A. “At first glance,” say Alessandra Stivelman, Esq. and Carolina Sznajderman Sheir, Esq., partners at the law firm of Eisinger, Brown, Lewis, Frankel & Chaiet, P.A. in Hollywood, “the biggest concern regarding this unit owner/director’s question is that he is being precluded from participating in governance of the association, as it appears that the controlling members of the board are making decisions without affording him (or any other minority board member) the opportunity to vote on matters that affect the association. The business and affairs of the association must be conducted at properly noticed board meetings. Florida law requires that meetings of the board of directors at which a quorum of the members is present be open to all unit owners. Moreover, adequate notice of all board meetings, including an agenda specifying the particular items of business to be addressed, must be posted conspicuously on the condominium property at least 48 hours before the meeting, except in an emergency. Most condominium documents require that notification of board meetings be provided to both unit owners and board members, often providing for additional notice requirements specifically applicable to board members. There are, however, certain specific matters that require at least 14 days’ advance notice, such as meetings to adopt the budget and levy assessments or adopt rules and regulations. Members of the board may use email as a means of communication, but may not cast a vote on an association matter via email. While the statute is silent as to telephonic conversations amongst board members, phone conferences where a quorum of the board is present are deemed to be a meeting which requires the appropriate notice and must be open to all members. 

“Please keep in mind that under the Statute, there is no requirement to have regular board meetings. However, if the board is making decisions regarding the day-to-day operations of the association, such as the execution of contracts, retentions of vendors, budgeting, violations and suspensions, these matters must be addressed at properly noticed board meetings. 

“Regarding the number of directors, there are legal issues to consider in determining the exact number of directors authorized to be on the board pursuant to applicable law and the specific association’s governing documents. Pursuant to applicable law, a board of directors cannot consist of less than three (3) members in condominiums with five or more units. When the method for determining the number of directors is not specified in the governing documents, the Florida law defaults to a board composed of five members. Whether and how an association can modify or change the number of directors must be determined on a case-by-case basis based upon the association’s governing documents. Keep in mind that directors all have the same vote on association matters, regardless of title. Most of the time, the decisions of the board must be made upon a majority vote of the directors present at a properly noticed meeting at which a quorum is attained. If the directors are currently voting on matters without following the proper procedures, they may be subjecting themselves (and the association) to possible liability. 

“As a director, you have the same (if not more) authority as other unit owners to inspect the association’s records. When a unit owner or board member expresses concerns about certain matters and is unsure as to how decisions are being made, one of the initial steps is to exercise the right to inspect/copy official records. By law, the association is required to allow inspection of the records within 10 business days from receipt of a written request. If the association fails to comply, statutory penalties may be sought through an arbitration proceeding (wherein the prevailing party is entitled to seek attorney’s fees and costs) or through the filing of a complaint with the Department of Business and Professional Regulation (DBPR). The DBPR does have jurisdiction to review certain types of violations and investigate improper conduct by directors. 

“Pursuant to the Condominium Act (Chapter 718, Florida Statutes), every newly elected or appointed director within 90 days of being elected or appointed must either attend a board certification class approved by the Florida DBPR, Division of Florida Condominiums, Timeshares and Mobile Homes, OR submit a written certification to the association compliant with the statutory requirements. The certification provides that the newly elected or appointed director has read the association’s governing documents, will work to uphold such documents and policies to the best of his/her ability, and will faithfully discharge his or her fiduciary responsibility to the association’s members. We highly recommend that the board members attend a board certification class regardless of whether a certification is submitted, as the information provided in the class is very useful for a director to help understand the day-to-day operations of a condominium and the laws governing Florida condominiums, and be educated on legislative changes and topics of interest. Directors should utilize and seek the advice of professionals, including legal counsel, management, and accountants. If there is a concern about legal/ethical issues, the association’s attorney should be made aware of same and perhaps an opinion should be requested. If there is a concern about day-to-day operations/management, a meeting with the property manager or management company should be requested. If it’s a financial issue, the director should reach out to the association’s accountant. Directors serving on the board are volunteers and the best way to protect themselves from liability and ensure compliance with their fiduciary duty is to utilize their business judgment and consult with professionals.”

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