Remote Meetings for Associations

     As we begin to move past the Covid-19 Pandemic, and all of the significant hurdles that community associations faced as a result, one of the silver linings is the nearly universal acceptance of technology to conduct regular business. Specifically, with respect to community associations, many associations had no choice but to learn how to conduct its meetings virtually through Zoom or similar platforms. At the time, although the law did not specifically contemplate conducting meetings in such a way, most practitioners agreed that conducting both board and membership meetings virtually was acceptable. Some of that guidance was based upon the powers afforded to community associations under their respective emergency powers statutes of §718.1265 or §720.316, Florida Statutes. However, as we move beyond the declared state of emergency, and the likely expiration of statutory emergency powers, the question remains, may community associations continue to conduct meetings, both board and membership, virtually?

            Section 718.112(2)(c), Florida Statutes, governs board of directors meetings for condominiums and provides, in pertinent part:

“Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items.”

            Additionally, §718.112(2)(b)5, Florida Statutes provides that: “A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting.”

            Likewise, §617.0820, Florida Statutes, which governs all not-for-profit corporations, allows the board, so long as the governing documents do not provide otherwise, to conduct the meeting through any means of communication happening in real-time.

            Ultimately, the law requires that board meetings be noticed, be open to and allow for owners to speak on agenda items. Board members are specifically afforded the right to appear virtually, so long as everyone participating can hear him/her. It would seem, then, without explicit authority stating as much, that a Zoom or similar type of virtual meeting would satisfy all of these requirements and be permissible under the law. There have been a few arbitration decisions discussing the use of Zoom meetings, none of which had the Arbitrator conclude that same were impermissible, so long as owners were duly noticed and afforded an opportunity to speak.

            Similarly, §720.303(2), Florida Statutes, which governs board of directors meeting for homeowners associations has comparable requirements in that meetings must be duly noticed, afford owners the right to attend, and allow owners to speak on agenda items. With the addition of the authority in §617.0820, a homeowners association may similarly conduct its board meetings exclusively virtually.

            As for to membership meetings, §617.0721(3), Florida Statutes, provides that if authorized by the board of directors, and subject to such guidelines and procedures as the board of directors may adopt, members and proxy holders who are not physically present at a meeting may, by means of remote communication participate in the meeting and be deemed to be present in person and vote at the meeting if the corporation:

 (1) implements reasonable means to verify that each person deemed present and authorized to vote by means of remote communication is a member or proxy holder; and (2) the corporation implements reasonable measures to provide such members or proxy holders with a reasonable opportunity to participate in the meeting and to vote on matters submitted to the members, including an opportunity to communicate and to read or hear the proceedings of the meeting substantially concurrent with the proceedings. If any member or proxy holder votes or takes other action by means of remote communication, a record of that member’s participation in the meeting must be maintained by the corporation in accordance with §617.1601.

Thus theoretically, members meetings, too, may be conducted virtually, so long as the appropriate safe-guards are put in place. However, associations should be mindful of the issues that virtual membership meetings raise with collecting and tabulating votes. Votes in community associations, typically have to be conducted in writing, so if a membership meeting is to be handled remotely, the community association will have to determine how to best handle accumulation and tabulation of votes, whether it is via an electronic voting platform, or pre-delivered ballots and proxies. Questions relating to conducting meetings virtually should be reviewed with competent community association counsel to formulate an appropriate plan. 

SACHS SAX CAPLAN, P.L.

DANIEL A. WEBER