Q: At a recent board meeting, a director moved to approve an item that was not on the agenda. The motion passed and is being implemented. Does this violate Florida law?
- J.V., Stuart
A: The answer depends on the nature of the business and whether your community is a condominium or a homeowners association. If your community is a condominium association, Florida Statutes Chapter 718 requires all agenda items be posted in advance of the meeting. Specifically, the statute provides "adequate notice of all board meeting, which must specifically identify all agenda items, must be posted conspicuously on the condominium property at least 48 continuous house before the meeting except in an emergency." So if the board in a condominium acts without a noticed agenda item, the action is not proper but could most likely be later ratified at a duly noticed meeting.
If the community is a homeowners association, the same statute requiring an identification of all agenda items is not present. Chapter 720 governing homeowners associations does not specifically address this issue, except to say that an agenda must be posted if the association is levying a special assessment or where the board is petitioned by the membership to address a specific item of business.
Q: Our condominium rules provide owners may not use condominium staff for personal use, such as asking maintenance individuals to perform tasks inside the unit. Some owners are asking the board to turn a blind eye to this rule. What are the risks?
- A.K., Treasure Coast
A: First, depending on whether the maintenance worker is an employee or independent contract of the association, there may not be insurance coverage and even if there is, insurance may deny a claim if there is an accident. Most indemnification provisions and insurance policies cover work performed within the scope of duties. If an employee or contractor is hired by the association with a defined task of furthering association business, it would be outside of his or her job description to enter a unit at the request of an owner and performed tasks and work for an individual unit owner. Second, the association would essentially be subsidizing owner responsibilities with common funds. Your Declaration of Condominium most likely includes a definition and permitted usage of common expenses. I would doubt the definition is broad enough to include work on behalf of an individual owner and may be a breach of fiduciary duty to permit such a practice. Note this is distinguishable from a situation where the association requests its own employees or contractors to enter a unit in the furtherance of association business.
Q: Is the condominium board required to post a notice in advance of a meeting with its attorney to discuss litigation?
- C.P., Stuart
A: Yes. There is an exception in the statute that provides meetings with counsel to discuss litigation do not need to be open to the membership, but it is still a meeting if a quorum of the board is present and conducting business. All meetings must be noticed in advance and, therefore, the meeting should be noticed at least 48 hours before the meeting.
John C. Goede, Esq., is a shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross. Visit www.GADClaw.com or ask questions about your issues for future columns, send your inquiry to: question@GADClaw.com.
