By Lilliana M. Farinas-Sabogal, Esq. / Published January 2020
Given the fast-moving changes in the Florida association law regarding technology, some associations may need help meeting their information technology requirements. It’s unlikely you will need to open up a Chief Information Officer position for your association, but managers and board members should make sure to keep up with the changing laws for future technology.
As Florida association law tries to catch up to the new technologies available to its unit owners, it is worthwhile to take a mom-ent at the beginning of this new year to make sure your association is 2020 technology ready.
On the anniversary of the Florida legislature’s compliance deadline for condominium associations of a certain size to keep certain records on “their” website, most associations are still unsure about what their requirements are under the “new” law.1
When originally passed, the website requirement laws were to take effect on January 1, 2018. However, perhaps because the requirements for compliance were more time consuming than anticipated, the legislature later extended the compliance deadline for one year. Effective January 1, 2019, any non-timeshare condominium with 150 units or more was required to post many of its records on its website. This requirement, of course, assumed that the association already had a website. In reality, many associations did not have a website when this law was originally to become effective. Many of those associations that did have a website did not have the website in compliance with the new requirements. Sometimes management companies would host websites for their association clients on a web portal owned and operated by the management company. When the contract between the association and the management company was terminated, the association was often required to create a new website. Sometimes, termination of contract was not amicable or unplanned, and this left associations in a bit of a lurch with respect to their websites.
The “new” website legislation included specific requirements for association websites that seemed geared toward ensuring continuity of websites for associations. These included a requirement that the association website be either “an independent website or web portal wholly owned and operated by the association or a website or web portal operated by a third-party provider with whom the association owns, leases, rents, or otherwise obtains the right to operate a web page, subpage, web portal, or collection of subpages or web portals dedicated to the association’s activities and on which required notices, records, and documents may be posted by the association.”2 Associations meeting this requirement should be far more in control of their website’s destiny.
The legislation also required certain content be on the association website in certain locations. Some portions of the association websites may be accessible to the public. However, the legislation requires websites to have a section that is not accessible to anyone other than unit owners and employees of the association. These “private” and protected sections of the website are required to contain certain association records and documents and may only be accessible to unit owners through a username and password that the association provides to them upon request.
The statute lists the documents that must be posted on the website. These include the governing documents of the association and the amendments thereto, the association’s pending contracts, and certain bids or summaries thereof for the related materials, equipment, or services. Also, the association must keep on the website the association’s budget and any proposed budget, as well as certain of the association’s financial reports. The website is specifically required to keep posted any contract between the association and “any director, officer, corporation, firm, or association that is not an affiliated condominium association or any other entity in which an association director is also a director or officer and financially interested” as well as “any contract or document related to a conflict of interest or possible conflict of interest as provided in ss. 468.436(2)(b)6. and 718.3027(3).” The website must also post each director’s certification of having read the association’s governing documents and law and understood them or having successfully completed a certified course.
Notably, any documents or information that would not be subject to a unit owner review of official records may not be posted on the website either or should be redacted from the documents that are posted. Inadvertent disclosure of the information or documents that should have been protected or redacted will not create liability on the association or its agent. However, liability will lie in the event of a disclosure that was made with a knowing or intentional disregard of the protected or restricted nature of such information.
In addition to keeping certain records on the protected portion of the website for unit owner review, associations are also required to include posting on the website as part of its notice requirements under the statutes. In other words, in addition to mailing or emailing and posting notices and agendas for unit owner and board meetings, the association must also post these notices (and related documents as set forth in the statute) on the website no later than the time required for mailing, emailing, and posting them.
Hopefully, any association that is required to have complied with the requirements has already done so. However, the statute states that if the association fails to post the information, such failure, on its own, will not be sufficient to invalidate any action or decision of the association’s board or its committees. For those associations that have not yet done so, they should come into compliance as soon as possible. It may be time consuming to initially upload the required documents, but keeping up with the requirements going forward should not be terribly time consuming.
As previously noted, associations are not required to post all of their official records, but there is no prohibition from posting more than those records required by the legislation. Indeed, so long as these are properly protected from public view and accessible only by unit owners via the username and password the legislation requires, associations could save time and energy by doing so. Once the documents are posted in the protected sections, the association’s ability to fulfill official records requests of the posted documents can be tremendously simplified, since the statutes state that the official records requests “may be complied with by having a copy of the official records of the association available . . . to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.”3 Any owner with a computer could access the records from the comfort of his or her location of choice.
If in addition to the website, an association has authorized electronic voting for its members, and owners have consented to receiving electronic transmission of meeting notices, the association could consider the possibility of inserting links in their electronic meeting notices (and the association website) to the electronic voting system it is using. Of course, the unit owner would still have to follow the association’s procedure for registering and/or signing in to the protected sections of the website and/or to the electronic voting system. However, a unit owner who has consented to receiving electronic transmission of notices could conceivably receive the electronic notice of meeting, click through, and sign in to the association’s website to review whatever documents he or she would need to review before casting his or her vote on the given issue, and then click through to the electronic voting system to cast his or her vote.
The unit owner could be anywhere and still be able to access the association’s documents, keep informed of the activity of the community, and participate in the voting process, all while saving the association time, paper, and postage.
If your association needs assistance with implementing the technology referenced in the Florida community association laws, it may not need a Chief Information Technology Officer, but it should consult its association attorney to make sure the proper protocols and requirements are being followed.
1 Florida Statutes §718.111(12)(g)
2 Florida Statutes §718.111(12)(g)(a)
3 Florida Statute Section 718.111(12)(b)
Lilliana Farinas-Sabogal is a shareholder in Becker’s Community Association and Business Litigation practice groups. In addition to her experience in assisting community associations in their day-to-day business, management, and the operational aspects of governing their communities, she assists boards of directors, unit owners, and community association managers in analyzing and resolving their often complex contractual and transactional disputes and issues. Ms. Farinas-Sabogal is also one of a select number of attorneys statewide who are Board Certified Specialists in Condominium and Planned Development Law. For more information, email LFarinas@beckerlawyers.com or call (305) 262-4433.