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New Florida Law: ACCESS TO E-MAILS

By Eric Glazer, Esq.

            Listeners of our Condo Craze and HOAs radio show know that we just discussed a new law for condominium associations that lets directors communicate, but not vote, by e-mail.

            On its face, I don’t find it objectionable that directors can communicate by e-mail.  Of course board members need to exchange ideas, thoughts and concerns and it is often times not practical to do so only at a properly noticed Board meeting.

            The problem I have is that at present, no matter how many times the Board members communicate to each other from their computers about the operation of the association, these e-mails are not “official records” of the association and therefore cannot be seen by any of the other unit owners.  Here’s why….

   

            In Humphrey v. Carriage Park Condominium Association, the arbitrator ruled as follows in regards to a unit owner’s request to see e-mails amongst and between the board members:

  

The e-mails requested in this case are those existing, if at all, on the personal computers of the individual directors.  These are not official records of the condominium association.  The property of an individual director does not become the property of the association because of his office on the board.

    

Just as a statement by an individual director cannot bind the board, an e-mail from or to a director, is not a record of the association. Even if directors communicate amongst themselves by e-mail strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change.

  

Similarly, an e-mail to an individual director on to all directors as a group, addressed only to their personal computers, is not written communication to the association.  This must be so because there is no obligation for a director to turn on the personal computer with any regularity, or to open and read e-mails before deleting them.

This conclusion may be different if the association owns a computer on which management conducts business including e-mails (analogous to government public records); or if e-mails are printed up and passed around for discussion at a board meeting.   

            I disagree with the opinion.  Why should it matter on what computer the e-mail was written on?  It’s either relevant to the operation of the association as required by statute, or it isn’t. According to this opinion, board members can discuss crucial terms of a contract including price, make modifications to that contract, and despite the fact that these e-mail communications clearly effect the operation of the association, unit owners are not allowed to see them, simply because of where the person was drafting the e-mail at the time it was sent.  If it was sent from their home, it’s off limits. But, if it was sent from a desk top computer in the office, unit owners can see it.  Makes no sense.  

  

            I don’t want the personal computers of directors searched. That is not what I am suggesting.  However, if board members are going to make certain decisions by e-mail, and discuss the operation of the association by e-mail, they should be aware of the fact that these communications are not subject to some sort of privilege and can be seen by the other owners.  What possible expectation of privacy can a director say they were entitled to when writing to another director about an association matter?

  

            I’m in favor of making these communications available for the other owners to see.  Am I off base or is anyone else out there with me?        

           

Read More: http://www.hoa-condoblog.com/

Miami real estate prices continue to increase

Miami real estate prices are soaring alongside new skyscrapers and high-rises, making downtown a pricey place to live.

“It is getting to the point where I think a lot of people are priced out,” said Ryan Homan of Integra Realty Resources.

A recent study found that condominiums built during the 2003-2008 economic boom sold then for $230 per square foot.  After a 75 percent increase, the same condos now sell for $400 per square foot.

The fact is that there is not much land left for sale in downtown Miami.  An Argentine grocery magnate bought the last waterfront parcel last week for $125 million, five times the land’s worth of $25 million in 2006.Units currently under construction can be sold for anywhere between $450 and $550 per square foot, and proposed units to be built in the future are worth $550 to $675 per square foot in pre-sales.  Super-luxury units can even fetch $1,000 to $1,200 per square foot.

“Ninety percent of the buyers are foreign (in Miami).  That is not typical of any (other) market,” said Homan.

As a result, the office-space market is getting tighter with a vacancy rate of only 15 percent.  Because vacancy rates are so low, rental rates have steadily increased since 2009.

“Back then, in downtown Miami, if you were to lease a 1,000-square-foot apartment, you would pay about $1,500 a month. Today if you were to lease that same apartment, you are looking at $2,400 a month," said Peter Zalewski of Cranespotters.com.

Experts are hoping that thousands of newly planned rentals in the works will somehow stabilize these skyrocketing rates.

 Read More: http://www.local10.com/

Condo Bill HB 807 Covers Records, Video Meetings, Email

This year was a fairly busy one in Tallahassee, with several Bills of interest passing out of the Legislature.

House Bill 807 (HB 807) is this year’s main bill affecting community associations. Last week, we looked at some changes from HB 807 involving the right to enter abandoned condominium units, property insurance requirements for condominiums, and new provisions regarding the association’s publication of owner directories and release of private owner information.

Here’s a look at some of the other highlights of HB 807:

• Official Records: Under the new statute, an outgoing director or committee member must relinquish all official records and property of the association in his or her possession, or under his or her control, within 5 days after the election of new board or committee members. Apparently, there have been cases in the past where outgoing directors and committee members have refused to cooperate. Under the new statute, the state agency which enforces certain aspects of the condominium law would be empowered to impose a civil penalty against an outgoing board member or committee member who willfully and knowingly fails to turn over such records and property to the association.

• Video-Conferencing:  Under the new statute, condominium association boards are specifically permitted to “meet” via telephone, real-time video conferencing, or similar real-time electronic or video communications. Members remotely participating in such meetings count towards a quorum as though they were physically present. This is perhaps more in the nature of a clarification than a change, the not-for-profit corporation statute has for a number of years permitted directors to participate in meetings by use of any means of communication by which all directors participating may simultaneously hear each other during the meeting.

• Board E-mails: In another change that probably does not plow new ground, the condominium statute will now provide that board or committee members may use e-mail as a means of communication with each other, but may not vote on association matters through e-mail. I think this was clear before the law was changed, but there was some perceived need to add this to the statute. Of perhaps greatest note, the new law does not address whether e-mails between board members are considered “official records” of the association, a somewhere complicated issue as to which there are some case decisions on point.

• Association Assessments: For purposes of joint and several liability for unpaid assessments, the term “previous owner” now excludes a condominium association that acquires title to a delinquent unit through foreclosure or by deed-in-lieu of foreclosure. This change in the statute is intended to address previous case law, finding that if an association takes title through foreclosure of its lien, it loses the right to seek contribution from its successor in title for past due assessment owed by a previous owner. A similar change was made to Chapter 720, the law applicable to homeowners’ associations, last year.