Ask An Expert: Your HOA, Condo Questions

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By: Avi S. Tryson, Esq. Special to the Boca and Delray newspapers

Q:  Can homeowner association (HOA) board members discuss HOA business in private emails?  We have nine board members.  If more than five are on an email string is this a violation of Florida Statutes?

C.S., Boca Raton

A:  Assuming that your association’s governing documents provide that a majority of the board of directors constitutes a quorum of the board of directors, then a majority of the board members meeting in person would constitute a board meeting that would have to satisfy the notice requirements set forth in 720.303 Florida Statutes and your association’s governing documents.  However, pursuant to 720.303(2)(a) Florida Statutes, board members may use email as a means of communication but may not cast a vote on an association matter via email.  Therefore, it is not a violation of the Florida Statutes for your board members to discuss your community’s business in private emails, but the board members would be prohibited from voting on any association matter in such emails.

Q:  What is the potential liability to a condo association when it comes to the various taxes that come due from the income members derive from leasing their respective condos?  In other words, if the association is a bit lax in its lease approval process, could it be liable for the collection of such taxes in the event of a member not following through with respective tax collection and forwarding it to the respective tax agency?

K.Z., Boca Raton

A:  The obligation to pay the income tax and hotel bed tax and any other taxes derived from an owner leasing their unit is the owner’s responsibility.  The association would not have any obligation to pay such taxes.

Q:  I live in a condominium and our election happened recently.  We now have all new board members who have never served on the board before (including myself).  Do you have any advice that will help us manage our community’s affairs?

S.B., Boca Raton

A:  Yes, I have some important advice for you and your fellow board members.  First, pursuant to 720.3033(1)(a) within 90 days after being elected to the board, each director must either (a) certify in writing to the secretary of the association that he or she read the association’s declaration of covenants, articles of incorporation, bylaws, and current written rules and policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members, or (b) submit a certificate of having satisfactorily completed the educational curriculum administered by a division-approved education provider.  While the statute only requires you to satisfy either (a) or (b), we recommend that you review the association’s governing documents and take a Board Certification Course, because there is information that you will learn from one that you will not get from the other, but if completed together, you are setting yourself up for success.  Second, learn to rely on your professionals; meaning, for example, if you have a legal question, ask the association’s attorney, if you have an issue with the building’s roof, make sure you have a licensed roofer or engineer inspect the roof for any issues.  By relying on professionals, the board isn’t holding themselves out as something they aren’t, which limits the liability exposure for not only the board but also for the association.  Finally, be involved.  Don’t assume that another board member or the property manager is doing the job for you.  Additionally, just because, for example, the treasurer is supposed to be the person who handles the association’s finances, that doesn’t mean the other board members don’t need to know what the association’s finances look like in order to make decisions that affect the community as a whole.

Avi S. Tryson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.