HOA Q&A: Can members of the Board of Directors vote by proxy?
Editor’s note: Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.
Q: My condominium board just had a board meeting. The board is composed of five directors. There were two directors present at the meeting. One of the directors stated that he had the proxies of two other directors. She had written letters from two of the directors providing her with the authority to vote on their behalf at the board meeting. The board held its meeting and voted to enter into several contracts and proposals. Can the board do this? Can an absent board member provide a proxy to another board member so he/she can vote at the board meeting? -- C.J., Sunrise
A: Florida Statutes provides that a board member may not vote by proxy or secret ballot at board meetings, except that officers may be elected by secret ballot. As such, the use of proxies in your condominium board meeting was in violation of the Florida Statutes. Additionally, if the Florida Statutes prohibits the use of proxies at board meetings, I would have to question whether the proxy was valid to constitute a quorum for your board to meet in the first place. I strongly recommend that your board schedule another board meeting where at least a majority of your board members are present, either in person or by telephone, or by video conference, so that the board can properly approve the contracts and proposals that they tried to approve at the previous board meeting.
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Q: There is a planned vote in our homeowner’s association to allow expansion of our driveways. For one reason or another, it has become a very controversial vote in the community. The board is in favor of this proposed amendment to our Declaration. Last week, the board sent out an email to the community regarding the benefits of approving the proposed amendment when it comes before the membership for a vote. Can the board do this? Can they use the association email list to advocate for their position? -- R.L., Fort Lauderdale
A: Florida Statutes does not prohibit the board from using the association email list to inform the community of a pending vote before the membership, including the benefits of the proposed amendment. The question then is whether there is anything in your association’s Bylaws that prohibits the board from sending out these types of communications to its membership. I would guess that there is probably nothing in your Bylaws that prohibits the board from doing so.
To that end, the next question is whether the owners who object to the proposed amendment can email the membership with information regarding the reasons as to why the proposed amendment would hinder the community. If the email addresses are not readily available, an association member can make an official records request to the association for the email addresses. The association is required to provide access to owners’ email addresses if the individual owners have consented to accept official association notices via email. If you are interested in sending an official records request to the association, I strongly recommend that you review the Florida Statutes (Chapter 720) or speak to an experienced community association attorney about the process.
Q: I have just purchased a three-bedroom condominium unit. My daughter and I are using 2 of the 3 bedrooms. We intended on leasing the third bedroom to someone else but the association denied the rental application. The association informed us that we could not rent out the third bedroom because of a single-family requirement for every unit. Does this sound right? What about other owners who live with their significant others and are not married? -- S.T., Plantation
A: I am familiar with lease denials for this reason and have advised my own clients to deny proposed leases for the same reason. However, first, I recommend reviewing your Declaration of Condominium to determine whether the board has the right to approve leases in the first place. If the board does not have the right to approve a lease, they would not have the right to disapprove a lease. Next, I would determine whether the term “single-family” or “family” is defined in the Declaration. If so, it will likely allow for unmarried couples to live together as a single “family” unit. But, it will probably not allow for the type of tenancy that you are suggesting. I recommend speaking with an attorney regarding your rights in this situation. If the Declaration contains the single-family requirement language, you may not have many options when it comes to renting out your spare bedroom, such as amending its Declaration of Condominium to include a different threshold.
Q: Recently, we requested to rent the clubhouse at my community. But, we were denied by the board because we did not ask within the time period required. I didn’t know there was a set time period. After requesting to review the rules, we found out that these rules were approved by the board via email. Can the board vote via email? -- A.T., Delray Beach
A: There is a simple answer to your question – no. The Board cannot vote via email. Both the condominium and the homeowner’s association statute prohibit the board from voting via email. If the board adopted these rules only via email, there is a question regarding whether they are enforceable.
John C. Goede, Esq., is a shareholder of the law firm Goede, DeBoest & Cross. Visit www.gadclaw.com to ask questions about your issues for future columns or send your inquiry to: [email protected]. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
This article originally appeared on Treasure Coast Newspapers: HOA Q&A: Can members of the Board of Directors vote by proxy?