What to expect as Community Associations - COVID-19
Community associations in Florida, like most of the country, are facing a variety of unprecedented challenges in response to the COVID-19 pandemic. During these challenging times, the best single piece of advice that we can give to managers and board members is to make reasonable decisions based (where appropriate) on professional advice from the authorities and from the professionals that advise your specific community.
The Florida Department of Health has set up a website at https://floridahealthcovid19.gov/ with links to many helpful resources. The Centers for Disease Control website on COVID-19 can be accessed at https://www.cdc.gov/coronavirus/2019-ncov/index.html. You may also wish to let your residents know that if they have questions or are experiencing symptoms, the Florida Department of Health has a 24-hour hotline at 1 (866) 779-6121. For legal questions that relate to COVID-19, each condominium or homeowners’ association should rely on the advice of its own legal counsel. However, we would like to share some of our general thoughts regarding commonly asked questions.
Q: Can we postpone an annual meeting of the members? Can we cancel and reschedule other (i.e. Board of Directors) meetings?
A: Yes, although special attention should be given to any specific requirements set forth in your community’s governing documents and delays in annual meetings (and especially elections) should be kept as short as possible. We are currently operating under declared states of emergency both for the State of Florida and nationally. The Division of Florida Condominiums, Timeshares and Mobile Homes (“Division”) has advised that it is the Division’s position that the COVID-19 pandemic qualifies as an “emergency” under Sec. 718.1265 of the Florida Condominium Act, which among other things allows the Board to “cancel and reschedule” any association meeting. A similar statutory provision exists in Sec. 720.316 for homeowners’ associations. While the applicability of these statutes to a pandemic is currently the subject of debate in the legal community, and the Division has no formal interpretive authority over statutes (disputes regarding the statute will, ultimately, be resolved by a court), it is our belief that these circumstances are sufficient to support a temporary postponement of even annual meetings based on the life-safety concerns.
Some community documents require annual member meetings to be held on a certain week or month. We recommend that associations delaying their annual meeting also announce the date of a rescheduled meeting at the same time members are notified of the postponement of any annual meeting. The meeting can be postponed a second time if it turns out that the reschedule date is not feasible due to ongoing COVID-19 issues. Any delays in an election should be limited to what is strictly necessary for personal safety, and delay should be minimized to the greatest extent practical.
Although most community association member meetings are still conducted in-person and by proxy, using paper proxies and paper ballots for elections, electronic voting is authorized by statute for both condominiums and homeowners’ associations. Associations facing a delay in annual meetings and elections, especially those with specific timing requirements, should consider whether electronic voting may make it feasible to proceed with a meeting/election without additional delay. Communities engaging in electronic voting for the first time must satisfy several statutory prerequisites before electronic voting is implemented for those owners who opt-in to voting electronically, and legal counsel should be consulted to ensure that the voting is implemented correctly.
Q: Can we hold a Board meeting on less than the standard notice?
A: For most items of business, the required notice for a board of directors meeting is 48-hours unless a longer period is required by your community’s governing documents. For items of business which can reasonably be deemed “emergency” in nature only, such as closure of an amenity due to COVID-19 safety concerns, we believe that notice can be given in a “practicable manner” as authorized by Sec. 718.1265 of the Florida Condominium Act and Sec. 720.316 of the Florida Homeowners Association Act. What this means is essentially as much notice as possible under the circumstances, and it would include posting of the meeting notice on property as soon as it is determined that a board meeting will be held. Although e-mailing of board of directors meeting notices to the members is not generally required, it may be advisable to e-mail notice of any emergency meeting that is conducted after less than the standard period of notice. Only items of business that are truly emergency in nature should be considered at an emergency meeting. Non-emergency matters should be reserved for a meeting that follows all standard notice requirements.
Q: Can we alter voting procedures, such as holding Board meetings entirely telephonically or allowing members to vote by telephone at a members meeting?
A: There is no specific guidance in statutes, the Florida Administrative Code or from the Division on whether standard voting procedures can be altered during an emergency situation. Our firm recommends to our clients that they continue to follow all standard voting procedures as required by statute and each community’s governing documents. This applies to both members meetings and board meetings, and we recommend postponement of a meeting if standard voting procedures cannot be safely followed. As mentioned above, electronic voting at members meetings can be implemented to avoid the need for in-person meetings or paper ballots, at least for those owners who consent to vote electronically.
With regard to board of directors (not members) meetings, it is generally required that meetings be held at a physical location where members can attend and observe, even if all directors intend to participate in the meeting by teleconference. Under the current circumstances of government-mandated social distancing and limitations on gatherings, this is problematic where even in smaller communities the holding of a physical meeting is equivalent to inviting dozens (and in larger communities, hundreds) of persons to attend. For the limited period that these governmental advisories are in effect and the State of Florida is under a declared state of emergency, we are advising our clients that they may hold board of directors meetings solely by teleconference as long as the general membership is also provided the teleconference number, at a minimum, by including the teleconference information on the required meeting notice. Typically, providing members with call-in information would be optional. Communities which follow this practice should be advised that the law in this area is unclear, and although we believe the action both legally defensible and reasonable under these extraordinary circumstances, there is the potential for it to be deemed a technical violation of open meeting requirements if an owner challenges the meeting. This would not, however, invalidate any actions taken by the board at such a meeting. In the context of public meetings, Governor DeSantis enacted Executive Order 20-69 on March 20, 2020, allowing local government bodies to use “communications media technology, such as telephonic and video conferencing.” While associations are not “local government bodies,” this Executive Order demonstrates the reasonable basis for temporarily relaxing in-person meeting restrictions.
Readers should contact their attorney to obtain legal advice with respect to any particular matter. Information provided on this website does not, and is not intended to, constitute legal advice or create an attorney-client relationship. All content, information and materials on this website are for general informational purposes only and may not constitute the most up-to-date information.