Live in a home governed by a condominium, co-op orhomeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Under Florida Statute 718.112(2)(c), condominium associations must provide owners with the opportunity to ask questions at least four times per year. Despite this requirement, our association has repeatedly restricted owners to speaking only on “agenda items,” which effectively eliminates the statutory question period.
After this issue was brought to the board’s attention, they added “resident comments” to the agenda. Owners attended the July meeting prepared to ask questions. I began speaking, and in the middle of my questions a management
company employee announced that she would adjourn the meeting. She has no authority to adjourn a board meeting, and this is the second time this same management company has attempted to shut down owner participation in this manner. The first time the management company successfully adjourned the meeting, and our minutes had to be corrected and documented.
When the vice president appeared uncomfortable answering my questions, she stated that my three minutes were up. The next owner who attempted to ask difficult questions was interrupted by the vice president, who then asked if someone would make a motion to adjourn. Another board member immediately made the motion, and the meeting was adjourned — after only two owners had spoken, with many others waiting.
We do not believe a motion to adjourn can be used to prematurely end owner questions, especially when those comments relate to statutory rights. The pattern of shutting down discussion whenever questions become challenging is deeply concerning and appears inconsistent with both Florida law and basic principles of open governance.
I would appreciate your opinion on whether this conduct aligns with statutory requirements and accepted condominium governance practices. Signed, D.R.
Dear D.R.,
The truth is that we really don’t know how arbitrators or courts will interpret this new statutory language. Facially, it seems simple — you must let condo owners ask questions at least four times per year.
Given that owners are also expressly permitted to speak to items on the agenda, it seems obvious that this must be an opportunity for owners to ask other questions that are not otherwise specifically scheduled for business. By the same token, boards are permitted to create reasonable rules regarding meeting participation, and time limits are common; and, there is nothing in the law saying that board members must answer the questions, just that owners must be allowed to ask.
It’s another one of those well-meaning laws that, when put into practice, don’t make a lot of sense. Owners already have a statutory right to send inquiries to the board, and the board is obligated to respond — so that really should satisfy an owner’s right to ask questions of the board.
A law requiring questions to also be permitted at quarterly meetings, with no concomitant obligation for the board members to respond (and really, how could such an obligation ever be enforceable), ends up looking like no more than a feel-good law to make lawmakers look like they were doing something beneficial for owners, when really the practical effect is minimal.
And consider that board members are similarly not obligated to stay at the meeting. Assume this is the last item on the agenda and once this business item comes up, a majority of the board members leave the room. Since there is no longer a quorum, the business of the meeting ends. Does that mean owners get to stay and ask their questions of the remaining board members? What if all the board members have left? Does it mean that the association did not comply with the law? I don’t see how that could be possible, because the only thing the law requires is that the meeting agenda must include “an opportunity for members to ask questions of the board.”
The agenda would in fact have had such an item — but the meeting simply closed before the agenda item came up. That clearly violates the spirit of the law, but not the letter. So, what will arbitrators or courts do?
My suspicion is that this is an issue that will rarely, if ever, be litigated, and that ultimately, it’s just going to be one of those procedural laws that looks good on paper but has no real application in practice. I mean, what’s the point of allowing questions when there’s no obligation to answer them in the first place?
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Condo board dismissing meetings amid owner comments. Is that legal?
