Approvals to Alter Condominium Property Must be Made at a Properly Noticed Board Meeting
Question: I regularly attend the board meetings of my condominium association. When I cannot attend, I make certain to read the minutes when they are posted. In the association’s quarterly newsletter, the president announced that the association would be changing the configuration of a conference room to allow for storage. Though the board is authorized in our declaration to approve material alterations, there was no vote taken at a board meeting on this. I believe the board is making decisions via e-mail, which I understand is prohibited by statute. To confirm this, I sent the association a certified letter requesting copies of all email communications between the board members and the property manager. Thirty days has passed since I sent the certified letter and I have not been provided with access to the e-mails. Shouldn’t they have provided me access within 30 days or do I have to wait 60 days before I can take further action? (T.T. via e-mail)
Answer: The Florida Supreme Court recently certified condominium and planned development law as an area of legal specialty. I was given the privilege of being appointed to the committee which will write the test that must be passed by lawyers who want to be certified as specialists in condominium law. Maybe we can use your question for the test, as it raises many interesting, inter-related and frequently encountered issues.
The Florida Condominium Act was amended in 2014 to provide that members of the board may use e-mail as a means of communication but may not cast a vote on association matters via e-mail. In my opinion, this was the law before the statute was amended. In your case, if the board is given authority by the declaration of condominium to approve alterations to the condominium property, those decision must be made at a properly noticed board meeting. Members (unit owners) are generally entitled to attend board meetings and speak to items the board will be voting on.
Whether the e-mails you have requested are “official records” of the association is a matter of some disagreement. The Condominium Act does not specifically address this issue. The Division of Condominiums, Timeshares and Mobile Homes (“Division”), the government agency that is tasked with oversight of condominium associations in Florida, issued an arbitration decision on the subject. The finding in that case was that e-mails between directors that are only on the directors’ personal computers are not “official records” of the association and therefore not subject to inspection by other owners. In a footnote, the arbitrator stated that his conclusion might be different if the association owned a computer, or if e-mails were printed up and passed around for discussion at a board meeting. There is also a question of whether the existence of emails on a management company’s computer has any bearing on the issue. Arbitration decisions are not binding legal precedent. The legal question on emails remains open, and is hotly debated from various perspectives.
To the extent your request for access to the e-mails is a proper request to inspect official records, the association must provide access to official records within 5 business days of receipt of a written request. After 10 days the association is presumed to have willfully disregarded the request and violated the statute. That presumption can be rebutted by the association.
Requesting access to official records is different than making a “certified inquiry.” The Condominium Act states that an association must respond to an “inquiry” sent by certified mail from a unit owner within 30 days of receipt. The Association must either provide a “substantive response” or notify the requesting member that the association has referred the matter to the Division, or legal counsel. If referred to the Division, the association must provide a substantive response within 10 days of receipt of an answer from the Division. If referred to legal counsel, a substantive response must be provided within 60 days of the original receipt of the inquiry.