Florida HOA Meeting Laws at a Glance
Florida law has a number of provisions governing the meetings of homeowner associations. Statute Chapter 720 governs Florida homeowners’ associations and contains specific requirements for HOA meetings. Written ballots, elections, and information about candidates are most commonly governed by statute 720.306 and require ballots to be returned a minimum of 14 days before the ballot meeting.
HOAs with 10 or fewer members have different types of meetings that can be called (see 720.307) and members must be given notice about the type of meeting before the meeting . And this statute also provides for certain procedures that allow board members to vote without calling a meeting such as via email, but specifically excludes any votes on assessments, amendments to the declaration or other restrictions that require a property owner’s approval (assessment votes).
Statute 720.306 governs general elections and the documents that can be provided to owners prior to the election, including written ballots, inner and outer envelopes, and a "secret ballot" provision.
Statute 718.113 governs the power of homeowners associations to adopt rules. HOA rules and regulations must be consistent with the association’s bylaws, articles of incorporation, and declaration of covenants and they cannot be beyond the association’s powers specified in the declaration of covenants or the controlling statute.
Annual Meeting Requirements
While it is easy to tell a condominium board of directors that they are required to hold a mandatory annual meeting each year under Florida law, the same cannot necessarily be said for a Florida HOA board of directors. The Florida HOA statute specifies the following three requirements for a Florida homeowners’ association:
- There must be at least 250 parcels in the community;
- The parcels in the community must be contiguous (or touching); and
- There must be a paid recreation fee or charge related to the membership.
So to sum it up, HOAs are not subject to the mandatory annual meeting requirements unless the answer to all three of the above questions is "yes." If these answers turn out to be "yes," then a Florida HOA board of directors will need to comply with the mandatory requirements set forth in Sections 720.106(1)-(3), Florida Statutes, as follows:
(1) Each homeowners’ association shall hold at least one meeting each year.
(2)(A) The board of directors of a homeowners’ association may determine the frequency of the meetings of the members. The board of directors may call and conduct additional meetings of the members if such meetings are necessary to conduct the business of the homeowners’ association as specified in the governing documents or otherwise authorized by the members. If the board of directors fails to do so, any member may call and conduct a meeting of the members to consider any business allowed under s. 720.306(1)(e) at a time and place established as provided in the governing documents or, if the governing documents make no provision for the time and main place of such meeting for members, the board of directors shall establish a time that is convenient to the members for such meeting and shall give notice of such meeting as provided in this subsection.
(B) An omitted board member if permitted in the governing documents or a member may call a meeting to be held to recall a board member. Notice of any such meeting shall be given as provided in this subsection.
(3)(A) Unless otherwise provided in the articles of incorporation or bylaws, the bylaws shall provide for giving notice to members of all membership meetings, specifying the place, date, and hour of the meetings and, in case of special meetings, the purpose of the meetings. Except as provided in paragraph (B), a special meeting of the members is not valid unless called pursuant to the provisions of the governing documents.
(B) Unless otherwise provided in the articles of incorporation or bylaws, an association shall give notice to each member if the following occur:
- A special assessment in any amount, except as provided in s. 720.303(3);
- A decision to foreclose on the association’s lien for assessments;
- A meeting of the board at which a vote will be taken on the following matters:
a. Approving payments of assessments that are more than 90 days old or that remain unpaid for periods exceeding 90 days;
b. A write-off of an account that is more than 90 days old other than an account reflecting a delinquent assessment in a timeshare plan created pursuant to chapter 721;
H. Any other matters for which notice is required pursuant to the provisions of the articles of incorporation or the bylaws.
HOA Meeting Notice Provisions
The manner in which notices for HOA meetings must be delivered is further addressed by §720.303(2)(b) of Florida law:
(b) The board or its designated agent shall give notice of each board meeting, including any meeting of a committee, other than the requirements of paragraph (c). The notice must be mailed, hand delivered, or electronically transmitted to each member and the representative, if any, of a member entitled to vote at the meeting at least 14 days before the meeting. The notice must state the date, time, and place of the meeting, and, if applicable, the agenda. An officer of the association or the manager or other person authorized by the association shall provide proof of delivery of the notice in accordance with this paragraph. The failure to give notice of any meeting shall not invalidate the actions taken at a meeting. Notwithstanding this paragraph, a member may waive receiving notice by delivering to the association a written waiver of notice or by attending the board meeting.
(Emphasis added)
In short, written notice of "each" board meeting – and that includes committee meetings – to each member and the representative of a member who is entitled to vote must be delivered between fourteen (14) and forty-five (45) days before a meeting.
Quorum and Voting Requirements
Quorum requirements also vary, but will usually require some level of owner attendance at the meeting to conduct official business. Without a quorum present HOA’s cannot take action or conduct elections. One of the most common quorum requirements is that 30% of the owners must be present at the meeting.
Voting procedures will also vary from association to association. It is common that owner voting will not be done by secret ballot and instead will simply be reflected by the voters signature on the applicable form. Owners generally have the right under the law to witness the counting of ballots at an election. Voting at membership meetings must be by written ballot and only open votes may be taken on issues that are not "really" a vote of the members.
Rule 718.112 (e) (2) (D) also provides the process for voting by mail when it requires that ballots be mailed or delivered to the unit owners, and if not delivered in person, must be mailed to each member so that the vote is received in the association’s custody or control at least 72 hours prior to the meeting. Signatures from the voters are also required on the ballots.
HOA and Board Meeting Agenda/Minutes
A meeting agenda should be carefully prepared before a Board meeting. Items should be in the proper order with the time limitations of members properly identified on the agenda. New business items should be plainly identified for all to see. The prepared agenda should also be available for distribution to those desiring a copy.
Minutes should be recorded and kept as a permanent record for all condo and homeowners’ associations. Many associations have difficulty approving meeting minutes because of confusion as to whether a power of attorney clause is sufficient; or if owners acting jointly can adopt a motion, etc. Clear strategies need to be established for the Board of Directors before the minutes are circulated. It is not wise for the Board to adopt minutes after they have been in circulation either among Board members or circulated to the membership. Merely adopting the minutes is not a motion to approve the minutes. Minutes need to be stated in the affirmative rather than adopting negativity. Minutes should be taken at every meeting, and for executive sessions, as well. Minutes must be approved by two officers of the Board before they are provided to membership. Those owners who do not appear to be attending the meeting by person, mail or email should not receive minutes. Minutes should not be prepared in a sensitive manner but should only reflect what is reasonably necessary for association members to understand what transpired . Minutes for the special and annual meetings of an Association should include some statement that the Board will continue to work toward regular order for the upcoming year and will only make changes to the annual plan for the corporation when it is necessary. Such a hedge in the minutes will allow flexibility to the Board but will not prevent the Board from observing the requirements of the documents and the law.
Meetings generally should be short, open to the membership and fair. Directors should be allowed to speak but without any filibuster. Rulings from the chair and points of order should be observed so the Board can quickly dispense with the business on the agenda for the meeting. Thus, it is important to keep the agenda short but complete.
There is nothing more important to an association than obtaining the accurate minutes from the annual meetings and from regular board meetings. Florida Statute Section 718.112(2)(b) relates to the recording of condominium meeting minutes. Florida Statutes Section 720.303(1) applies to homeowners’ associations and requires each organization to maintain permanent records within a 45 mile radius of the association.
Florida Statutes Sections 718.112(2)(e) (condominium statute) and 720.303 (homeowners’ statute) require that board members affirmatively state at the meetings that the corporation is fulfilling its financial responsibility to the members and that no member is behind 90 days or more in their assessments. Neither statute, however, provides for the collection of delinquent assessment when the member fails to make an affirmative statement denying delinquency.
Legal Repercussions for Failure to Comply
Failure to comply with the annual meeting requirements can have significant implications for Florida homeowners’ associations. Without the proper election of the board members, an association could theoretically end up not having a board at all. This is because an association is only a not-for-profit corporation under Florida law if it has a board of directors, called a board of directors in its governing documents, that is responsible for the general affairs of the association. Without a board, the common areas of the community become either "unincorporated association property" subject to the not-so-friendly provisions of Chapter 720, Florida Statutes (the "Homeowners’ Association Act"), or a de facto general partnership, which is subject to Chapter 620, Florida Statutes, the Florida General Partnership Law.
In assessing these potential consequences of failing to meet the annual meeting requirements, it is important to note that the annual meeting deadline does not automatically trigger a violation. A violation occurs, rather, when a member, owner, or member’s mortgagee requests that the association hold the annual meeting and the required meeting is not held within 60 days of that request. Because it is also a violation of the statute to not hold the required annual meeting, which carries significantly fewer penalties, a violation for failure to hold the meeting often occurs simultaneously with a violation for failure to hold the meeting. In other words, failing to have the annual meeting is not a violation of the statute; rather, failing to hold the annual meeting more than 60 days after the initial request for the meeting carries the same penalties that would exist for failing to have a meeting.
With each violation of the statute carrying identical penalties, the real question is what those penalties are. The penalties for violation of the statute’s annual meeting provisions are: In Florida, a violation of the HOA Act constitutes a violation of Chapter 468, Florida Statutes, by which the Department of Business and Professional Regulation may issue fines against the association, its officers and directors, agents, or employees pursuant to Section 468.433, Florida Statutes. There is some risk, however, that a court would not enforce a fine against board members who were not aware of the statute’s requirement (e.g., those board members elected at an improperly convened organizational meeting)
In addition to statutory fines, HOA members may petition the Department of Business and Professional Regulation ("DBPR") for a formal hearing against the association and/or its directors and managers for a fine for violating the statute. This fine, however, can only be up to $5,000.00. Even if the amount is less than $5,000.00, such actions can be costly – similar to court costs, DBPR charges each side $500.00 to conduct an administrative hearing. That is, if a member loses this hearing, they must pay the bill! The procedures for an administrative hearing are similar to those for a civil trial, which usually means that any party that loses would also pay the attorney’s fees of the winner. Moreover, DBPR has previously filed administrative complaints seeking for a fine of up to $5,000.00 against individuals that incorrectly identified themselves as board members. Because of the risks involved in an administrative hearing, most members do not bother to pursue them.
By enforcing the statute through the administrative process, however, DBPR has made compliance in elections a priority. Even if the Department were to give up on prosecuting violations of the annual meeting requirement, the Association’s insurance company would likely step in to protect the Board if the HOA needed to pay damages to a member from not following the statute. Most basic policies for large associations have $100,000.00 of liability insurance for violations of the Florida Statutes.
Tips for a Successful HOA Meeting
To avoid these complications, it is essential to have a dedicated professional managing your community association’s business affairs. That professional should become intimately familiar with your community’s governing documents, pertinent state statutes, and should implement the necessary procedures to ensure compliance with all required notice provisions. Your management professional should also oversee the voting process and eligibility of members to vote prior to the election. And, of course, the meeting should be conducted in a "fair and impartial manner."
Because of the number of legal requirements and potential landmines lurking within the governing documents and the statutes, HOA management firms should be regularly communicating with their boards to ensure that:
- (1) proper notice of the annual meeting is provided 14 days in advance of the election;
- (2) notice of the election includes a general explanation of eligibility requirements to be a candidate and serve on the board of directors of the association;
- (3) notice includes an offer to send a candidate application/folder to all candidates for board of director and officer positions;
- (4) notice includes the following statement: "any candidate or committee of candidates must provide the association with written notice of any campaign materials to be distributed at least 48 hours before the solicitation of votes begins."
- (5) the election occurs either at the annual meeting of members or conducted by secret ballot in accordance with the bylaws and applicable state law;
- (6) the secret ballot is used for elections and may not be accepted in lieu of a secret ballot for recall;
- (7) to be eligible for board candidacy, a candidate must:
(a) Be a natural person who is 18 years of age or older;
(b) Be a member of the association, or if a corporation, limited liability company, or other entity, a representative designated by such entity who is a natural person who is 18 years of age or older;
(c) Not have been convicted of any felony offense involving the misuse of funds of an association or another corporation, limited liability company, or other entity subject to regulation under chapter 718, chapter 719, chapter 720, chapter 721, or chapter 607, Florida Statutes, within the past 20 years, unless adjudged guilty of the felony or completed the sentence including probation;
(d) If he or she is a director of a timeshare condominium association, be a timeshare estate owner or interval owner in the timeshare condominium association; and
(e) Have completed the volunteer certification education requirement, if applicable under subsections (3)-(5) .
- (8) the term of office of the board members must be defined and should generally run for two-year terms or until successors are elected and qualified;
- (9) board of director recall provisions be invoked with caution and only in extreme instances where the board has seriously abused its powers or engaged in flagrant violations of the law or the governing documents of the association;
- (10) ballots must be kept in an envelope sealed by the inspector of elections or with a signature of an elector as follows:
(a) Where there is only one candidate for an office, the ballot may be unsealed and opened and the ballots from all members may be counted;
(b) Where there are more than two candidates for one office, the ballots may not be unsealed but shall be maintained in a sealed envelope;
(c) Where there are two candidates for one office, the ballots must be signed as allowed by the procedure in the governing documents or approved by the members voting;
(11) proxies should be provided to members and a specified time period to exercise that right. Proxies may be utilized only at a meeting of the members. The hours and date of receipt should be specified in order to eliminate any question about the proxy being exercised at a meeting or mailed or hand-delivered so as to arrive at the designated location within the time frames specified.
Continuous communication with the members is essential. An informed board and community association manager will avoid unnecessary and costly litigation.
"An informed and educated homeowner and board of directors can save the association dollars otherwise spent on legal counsel."