John C. Goede: When can board members discuss association business?

Editors note: Attorneys at Goede, Adamczyk & DeBoest, PLLC respond to questions about Florida community association law. With offices in Naples, Fort Myers and Miami, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q. The board members for our homeowners association (HOA) frequently eat and socialize together. Many people suspect that they are running the association in these informal meetings, and it is my understanding that board members should only make decisions in meetings that are open to the residents. Can you please clarify when it is appropriate for the board members to gather and discuss association business?

B.A.

West Palm Beach

A. By law, a meeting of the board of directors occurs whenever a quorum of the board gathers to conduct association business. We constantly hear complaints about boards operating outside of the sunshine law and having illegal closed meetings, but it is important to remember that not every gathering of board members constitutes an official meeting that must be properly noticed and open to the membership. First, you must have a quorum of directors. The quorum requirement can be found in your bylaws, but generally a quorum is established when a majority of the board members are present in person or by teleconference. If a quorum of directors are frequently gathering to discuss association issues and they are making decisions for the community in these informal meetings, then they are probably violating the law. However, board members should not be afraid to socialize or be seen together in public. They simply need to exercise discretion and avoid conducting association business unless they have organized a proper meeting that is open to the membership. Board members should also be careful when using email to discuss association business. If a quorum of directors is discussing association business and making decisions by email that would also be an illegal board meeting.

Q. We have a unit in our condominium that has been delinquent for years. We are nervous that the owner may try to quietly sell or transfer title to the unit in an effort to avoid payment to the HOA. Is there anything we can do to ensure that we collect what is owed?

K.S.

Delray Beach

A. I understand why you are anxious, but rest assured that the condo association has adequate protection. Chapter 718 of the Florida Statutes provides that any new owner is jointly and severally liable for all assessments and charges owed to the association by the prior owner. This means that if the current owner does not pay all amounts owed at the time of sale or transfer, then the association can pursue the new owner for 100 percent of those delinquent charges. Should the association not receive payment from either owner, it can file a lien on the property and foreclose on that lien. The association can also pursue a personal money judgment against either owner. You can periodically check the status of title by going to the county clerks website which will show any transfers of title. If the owner attempts to sell through traditional means and employs a title company or real estate attorney to handle the transaction, the association will be notified of the transfer and will have the opportunity to collect payment of all delinquent charges at the closing.

Q. I live in an HOA and I bought my home because I wanted the freedom to maintain my own landscaping and make improvements to my property. Last weekend, I was trimming and edging and I was told to stop because the HOA was solely responsible for landscaping. I also want to plant a garden and I was told that I need to first obtain approval from the HOAs beautification committee. Can the HOA really stop me from making my property more attractive?

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John C. Goede: When can board members discuss association business?