Tag Archives: board

Florida Statute 718.303: Suspend the Voting and Common Element Use Rights of Unit Owners in Arrears

Today’s topic was discussed briefly in my post on condo association collections policies; however, we have received more than one question on this issue so I am dedicating a post to it exclusively.

Along with the traditional remedies for unit owners past due in paying their maintenance fees (e.g., late fees, interest, rent garnishment, foreclosure), Florida Statutes 718.303(4) and 718.303(5) allow associations to suspend the common elements use rights and voting rights, respectively, of unit owners (and their tenants/ guests) who are more than 90 days in arrears.

What is important to note here is that this suspension doesn’t happen automatically at the 90-day mark. According to FL Statute 718.303(6), the board must vote to suspend a unit owner’s voting and common elements use rights at a board meeting and must notify the unit owner of the suspension via mail or hand delivery. These rights are automatically reinstated once a unit owner is again less than 90 days delinquent.

If your association is going to take advantage of these remedies, it is very important to do so consistently. The board should be careful not to suspend the rights of one delinquent unit owner but not another. My recommendation is to keep a permanent item on the association’s Board meeting agendas specifically for this purpose. At each meeting, as the Board reviews the accounts receivable, the property manager should provide a list of all unit owners more than 90 days delinquent that have not yet had their rights suspended. At that time, the Board may vote to suspend them. During meetings when no new unit owners have become 90+ days in arrears, the Board should simply skip this agenda item.

NOTE: As a vote to suspend rights is required per Florida Statutes, the board should be sure to list in the meeting minutes the specific units they have voted to suspend.

Regarding the common elements restriction, when possible, associations should restrict the unit owner’s access to the pool, gym, clubhouse, car wash, laundry facilities or any other amenities the property offers. For occupied units (and particularly for rented units where the tenant is restricted from using the amenities), this inconvenience can often be enough to encourage unit owners to pay their past due balance.

NOTE: The common elements suspension does not apply to limited common elements, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators.

Regarding the suspension of voting rights, this particular restriction does not tend to do much to encourage unit owners to pay past due balances as those in arrears tend not to care enough to vote. However, it is still worthwhile as the association may reduce the total number of votes necessary to constitute a quorum of the membership by the number of voting rights suspended. This can be a difference maker if the association is struggling to obtain enough votes for their annual meeting, for amendments to the association’s documents, or for any other vote.

Let me know if you have any questions on this topic.

Best,

Ryan

Ryan Koski is a condominium homeowner in Tampa, Florida and a CPA and Attorney with Accounting Clinic, Inc. He is also a Director of VERA Property Management, a firm providing full-service community association management in the Tampa Bay Area as well as consulting, financial and legal services to all Florida community associations. 

Florida Condo Association Board Meetings: Unit Owner Rights and Association Responsibilities

Board meeting are run in many different ways. Boards can choose a flexible approach, allowing unit owners to chime in at will. Or they may prefer a highly structured approach, with unit owners allowed to speak only if a request to speak was submitted in advance. The fact is both of these methods (and the many in between) are acceptable. The Florida Statutes and Florida Administrative Code (F.A.C) provide limited guidance on unit owner rights and conduct at board & committee meetings, leaving it to the board to determine specifics. Many association board members and managers do not understand the law; they often confuse common meeting recommendations (e.g., 3 minute speaking limits per unit owner) with legal requirements. These misunderstandings can create inconsistency and frustration for all parties.

Given the above, I recommend that associations draft and disseminate a detailed policy outlining board & committee meeting rules. This policy will educate unit owners on their rights, help keep meetings short and focused, and ensure consistent treatment of all unit owners. As I recommend with all policies, the board’s attorney should review the policy initially and the policy should be reviewed annually to ensure continued compliance with the Florida Statutes & F.A.C.

This post will review the law surrounding unit owner rights at board & committee meetings, and provide specific policy construction recommendations for board members.

NOTE: We will not be discussing agendas or meeting notices in this post. We will address these issues in a future post.

Per Florida Statute 718.112(2)(c) and Florida Administrative Code 61B-23:

1. Unit owners may attend all board meetings and all committee meetings with the exception of:

  • Meeting with the association’s attorney where litigation is being discussed;
  • Meetings to discuss personnel (i.e., employee) issues; and
  • Committee meetings specifically deemed private in the bylaws.

NOTE: Regardless of what the bylaws state, committee meetings where (1) final action will be taken on behalf of the board and (2) where budget recommendations will be provided to the board are always open to unit owners per Florida Statutes.

2. Unit owners may speak at meetings regarding items on the agenda for at least three minutes.

3. Unit owners may record (video or audit) meetings so long as the equipment does not produce distracting sounds or lights. Further, the board may adopt any of the following rules:

  • A specific place to assemble audit and video equipment
  • Equipment must be setup in advance of the meeting start
  • Equipment must be stationary throughout the meeting
  • Unit owners must give the board advance notice of  their intentions to record the meeting

4. Associations may adopt reasonable rules governing when and for how long unit owners may speak

Each property’s governing documents may have further guidance on the above; however, generally speaking, this is the extent of the rules surrounding unit owner rights at meetings. The last bullet point above is vague, requiring boards to decide how they want to run their meetings. The approach that best suits your community will depend in large part on the personalities of the board members and the level of unit owner involvement at board meetings. The following paragraphs will discuss the key components of a well-drafted board meeting policy.

Attendance: The policy should explain which types of board and committee meetings unit owners may attend per Florida Statutes, F.A.C., and the community’s bylaws.

Speaking: The policy should specify (1) about what topics unit owners may speak, (2) when unit owners may speak, and (3) for how long they may speak. Let’s look at each of these individually.

Discussion topics: The Florida Statutes are clear that unit owners may speak on any topic listed in the meeting agenda. Questions arise, however, when non-agenda topics are introduced. The concern here is that if a unit owner brings up a non-agenda issue and the board begins a discussion on this issue, the board is denying absent unit owners their right to contribute to the discussion. In short, any material discussion and/or voting on non-agenda items is a violation of FL Statute 718.112(2)(c). To avoid this risk, the policy should stipulate that unit owners tailor their comments to agenda items. The policy may also stipulate that if a unit owner would like a specific item on the agenda, they should contact the association a certain number of days in advance of the meeting.

NOTE: If a unit owner does bring up a non-agenda item, the board should simply do their best to limit the discussion on that topic and, if necessary, add the item to the next meeting’s agenda. Less than a quorum of board members may also speak to the unit owner separately after the meeting. It is not necessary, in my opinion, to comply with the strictest interpretation of the law and never speak one word about non-agenda items. This is unrealistic. Instead, make sure to comply with the spirit of the law and do what you can to let the unit owner know his/ her comments are taken seriously.

Speaking times: In order to be compliant with the rules around a unit owner’s right to speak on agenda items, the association must grant unit owners the right to speak in advance of any board vote on a topic. Obviously, there would be no benefit in boards granting unit owners the right to speak after all of the meeting’s business had been conducted.

This essentially leaves boards with two options: (1) allow unit owners the right to speak on all agenda items at one specific point in the meeting (typically near the beginning), or (2) allow unit owners the right to speak on each agenda item prior to the board voting on each item. There are pros and cons to both options and only your board will know which is best. In my experience, unit owners are partial to the second option as it allows them to first learn about the agenda item and hear the board’s thoughts before commenting.

 Speaking length: The board should specify in the policy any time limits on unit owners’ comments. If your association is interested in running a very structured board meeting where unit owners may speak but there will be no conversation between unit owners and the board, then setting time limits may be possible. In my experience, however, board meetings do not operate this way and time limits are not only difficult to implement but tend to create unit owner resentment. What boards need to be careful of is establishing a time limit and then only enforcing the limit when a unit owner disagrees with the board or is being “difficult”. This can happen more easily that you might think. My recommendation would be to avoid specifying time limits in the policy. In practice, if a unit owner is being unnecessarily long winded and the majority of the board feels he/ she has had sufficient time to speak, the president of the board should simply thank the unit owner and proceed with a vote.

Recording: Florida law gives unit owners the right to record meetings but leaves the details to associations. The policy should specify if unit owners must provide the board advance notice of any recording and how to provide such notice. Further, the policy should specify (1) whether recording devices must be set up in advance of the meeting, (2) a location in the meeting room where recording devices may be placed, and (3) whether recording devices must be stationary during the meeting. Lastly, the policy should specify that the board may require the unit owner to turn off the recording device if it produces any disturbing noises or lights.

Identification/ Sign In: For the purposes of property recording the minutes, all unit owners should be required to sign in upon arrival. Particularly for large properties where neither board members nor managers know all unit owners, the policy should specify if attendees will need to show proof of identification during sign in.

Board Member Materials: One infrequently discussed but relevant issue is a unit owner’s right to a copy of the board’s “information packet”. These packets generally include the most recent financial statements, draft meeting minutes, a manager’s report, and any proposals or other documentation relevant to the agenda items. Distributing packet documents keeps unit owners engaged during the meeting, may elicit useful comments from unit owners, and helps to maintain positive unit owner-association relations. On the other hand, providing this information to unit owners at the meeting may lead to numerous unit owner questions and interruptions, effectively creating a large roundtable discussion that may draw out the meeting for hours.

Most associations do not provide copies of information packets to attendees and there is no clear-cut obligation to do so. In order to decide how the board would like to proceed on this point, it is first important to consider the relevant laws. According to Florida Statute 718.111(12):

  • Unit owners are entitled to review any document considered an association official record. Notably, draft financial statements & meeting minutes are not official records until they are approved by the Board. All other documents relevant to board meetings (e.g., proposals, unit owner requests) become official records as soon as they are considered by the board (i.e., presented at a board meeting).
  • Unit owners may request in writing to view the records and the association has 5 days to comply.
  • Associations may charge the unit owner their actual cost to make them copies of official records.

Based on these laws, if a unit owner provided written notice 5 days in advance of a board meeting requesting they be provided a copy of the board information packet once completed, I believe they would have a right to it (excluding draft financials & minutes).

Given the above, I recommend allowing unit owners to request that a copy of the packet be made available to them at the meeting. I would require that the request be made at least 24 hours in advance of the meeting. Much more than 24 hours in advance may be prohibitive as meeting notices are only required to be posted 48 hours in advance per Florida Statute. Further, I suggest specifying any cost the unit owner will incur (generally a price per page).

Tenants, Other Residents and Unit Owner Representatives: Tenants and other non-owner residents are not granted the right to attend board meetings by Florida law. Similarly, unit owner representatives such as property managers or family members have no right to attend meetings. Given this, it is up to the board to decide if they will allow anyone other than unit owners to attend meetings. It is my recommendation that non-owners be allowed to attend and speak at board meetings if accompanied by the owner. This benefits the association as it prevents tenants, property managers and other interested parties from bypassing the unit owner and going straight to the board with their issues. Further, this provides an opportunity for non-owner residents to voice their opinion which is important particularly for properties with high rental rates.

NOTE: The Department of Business and Professional Regulation has indicated that anyone with a unit owner’s Power of Attorney has the right to attend and speak at board meetings.

I hope this overview of unit owner rights at board meetings has been helpful. If your association has not done so already, consider encouraging the board to draft a policy outlining the items discussed here.

If we can be of any help, please feel free to contact us.

Emily

Emily is a Florida condo owner and a director of VERA Property Management, a condominium and homeowners’ association management and consulting firm serving the Tampa Bay Area.