The statutory emergency powers granted to community associations as a result of the COVID-19 state of emergency proved to be a valuable resource for the orderly operations of Florida’s community associations. Many associations had to make significant changes to how they conducted the business of their association. For example, holding board meetings via Zoom and GoToWebinar became invaluable. But, when the state of emergency is over, can annual meetings and board meetings continue to take place on the internet? Sure they can, subject to the important considerations explained below. In addition, what other technologies can be utilized by the board?
In fact, at the present time there are three statutory approvals of technology that an association can utilize to make conducting the business of the association easier on a regular basis. They include holding meetings electronic-ally, voting electronically, and using email as an official means of communication to the members rather than the U.S. Postal Service. Electronic board meetings allow the board to continue conducting the business of the association without putting themselves or others in harm’s way. In addition, by attending electronically, think of all of the gas that is saved since no one has to drive to the meeting. More than that, think of the extra time spent not driving or walking to the meeting and how it could be used as quality family time or just to relax.
However, if the board chooses to use video conferencing, it is important to remember that the board must comply with the statutory provisions regarding board meetings. The members must receive notice of the meeting pursuant to the bylaws of the association, and in any event, at least 48 hours in advance of the meeting. Additionally, condominium association members must have the right to speak to all designated agenda items, and HOA members also get the additional right to speak on any item discussed by the board. (This is because from a strict statutory interpretation condominium association boards are only supposed to address what is set out on the agenda, while this restriction does not apply to HOA boards.) Remember, there is no exception to the meeting notice requirements and the need to provide opportunity for member comment. Therefore, any video conferencing software the board utilizes must allow members to virtually attend the meeting and have the opportunity to speak.
The second technology that associations can utilize to make life easier is electronic voting. Florida law allows condominiums, homeowners associations, and cooperatives to conduct elections and other owner votes electronically. When an association board adopts electronic voting, each member of the association must opt in, in writing, and can then vote safely from the comfort of the member’s own home. Imagine all of the time saved by punching a computer button to get the tally rather than counting by hand, in some instances more than 1000 votes!
To adopt electronic voting, the board must first adopt a resolution authorizing an online voting system. The board resolution must provide that members will receive notice of the opportunity to vote online, and it must establish reasonable procedures and deadlines for members to consent in writing to online voting or to opt out of online voting. Once the board has approved electronic voting, the board must select an online voting system that complies with the requirements of Florida law. The online voting system must be able to do the following: (1) authenticate the owner’s identity, (2) authenticate the validity of each electronic vote to ensure that the vote is not changed during transmission, (3) transmit a receipt to each owner who casts an electronic vote, (4) be able to separate any authentication or identifying information from the ballot when voting must be done by secret ballot, and (5) be able to store and keep electronic votes accessible for recount, inspection, and review purposes.
Please take note that the board cannot force owners to vote electronically. Thus, a necessary step is to obtain each member’s written consent to participate in electronic voting. If an owner does not consent or opts out of electronic voting, then the board must allow that owner to paper vote.
The third technology an association can utilize, which saves money, paper, and time, is electronic notices for official association communications. In other words, give up postage stamps in favor of using email. Generally, associations are required to send official notices via mail or hand delivery. However, the association may choose to send notice via email but only if an owner has provided written consent to receive the notices electronically.
Emails used for official association communications can only be sent to those owners who consent, in writing, to receive their official notices by electronic transmission. The written consent must specifically authorize the association to transmit notices electronically. An owner who has consented to electronic notice may opt out at any time. The association must retain a roster of the email addresses and the written consents of owners as an official record of the association. The member is responsible to ensure the association’s emails are not blocked or categorized as spam. Failure to receive an email due to a member’s inability to receive the email will not be a valid reason for objecting. Budget adoption notices, annual meeting notices, election notices, board meeting notices, and so much more can be provided via email.
Over the last several months, many associations have had to learn how to utilize technology to conduct the business of their association during the COVID-19 pandemic. Some have done so correctly, and likely others have not. Thus, in utilizing any of the technology discussed in this article, an important step is to consult with your association’s attorney to ensure proper compliance with all of the statutory requirements. Let us also turn a negative into a positive by continuing to use technology to assist the association to operate smoothly. Who knows, perhaps one day there will be a way for members to virtually enjoy the amenities, too. Until then, you’ll find me at the pool deck.
Partner, Kaye Bender Rembaum
Attorney Jeffrey Rembaum has considerable experience representing countless community associations that include condominium, homeowner, commercial, and cooperative associations throughout Florida. Every year since 2012, Mr. Rembaum has been inducted into the Florida Super Lawyers. Together with his partners, attorneys Robert Kaye and Michael Bender, their law firm, Kaye Bender Rembaum, is devoted to the representation of community and commercial associations throughout Florida. Kaye Bender Rembaum, with offices in Palm Beach, Broward, and Hillsborough Counties (and Miami by appointment), provides their clients with an unparalleled level of personalized and professional service. For more information, visit kbrlegal.com.