board members | Rembaum's Association Roundup

December 1, 2025December 1, 2025

The Association’s Right to Seek an Injunction to Compel Compliance with the Declaration of Covenants

An Ever-Changing Situation

In two previous articles – “Violation Remedies: Self-Help vs. Injunction | Which to Use” published in June 2022 and “Is It Time to Consider Removing an Association’s Right of Self-Help to Cure an Owner’s Violation from the Declaration?” published in November 2023 – the Roundup reported on appellate cases addressing the right of homeowners’ associations to seek an injunction against an owner for violations of the declaration as compared against the need to first seek a self-help remedy when also authorized by the declaration. Both articles discussed recent appellate cases from Florida’s 2^nd District Court of Appeal (DCA) and Florida’s 6^th DCA. These cases held, in short, that if the declaration provides that an association may seek an injunction for a court order against a noncomplying owner and also includes the association’s right of self-help to cure the violation, the remedy of self-help must be employed before the association can seek an injunction ordering the noncomplying owner to cure the violation.

For example, if an owner fails to maintain their yard and the declaration provides the association with the remedies of self-help and seeking a court ordered injunction to compel the owner to cure the violation, both the 2^nd DCA and 6^th DCA held that the association must at least try to exercise self-help to cure the violation as an adequate remedy at law before seeking an injunction. This is because of the long-established, important principal that all legal remedies (i.e., contractual remedies) must be exhausted before an equitable remedy (meaning, “judge make the owner do the right thing”) can be sought from the court.

To put all this together, the declaration is a contact between the owner and the association and if such contract provides the right of the association to enter the lot to cure the landscaping violations, but not the obligation to do so, then such permissive and nonobligatory right is still a legal remedy, and therefore, it must be used before an association can seek the equitable remedy of an injunction from the court. But, like many rules, there are exceptions. Remember, “i” before “e” except after “c”? Few bodies of law have more exceptions than that of community association law and for good reason too!

In August 2025, Florida’s 4^th DCA recognized the long-standing decisional exception that allows a homeowners’ association to seek the equitable remedy of an injunction without having to first use, or even to at least try to use, the legal remedy of self-help where both remedies are set out in the declaration of covenants. In Mooney v. Color Le Palais of Boynton Beach Homeowners Association, Inc., Case No. 4D2024-0967 & 2024-2082 (Fla. 4^th DCA August 27, 2025), the 4^th DCA affirmed the trial court’s reasoning that the association was not required to establish irreparable harm or inadequate remedy at law before seeking an injunction. The Court recognized that traditionally when seeking an injunction a party must have (i) a clear right, (ii) irreparable harm, and (iii) no adequate remedy at law. However, violations of restrictive covenants on real estate (i.e., a declaration of covenants) have a long-justified departure from this general rule. The 4^th DCA points to a 1927 Florida Supreme Court case, Stephl v. Moore, 114 So. 255 (Fla. 1927) which provided that, “a violation of covenants amounts to an irreparable injury… appropriate allegations showing a violation or quasi violation of the covenants is sufficient.” The 4^th DCA even points to a 2006 2^nd DCA case, Autozone Sores, Inc. v. Ne. Plaza Venture, LLC, 934 So.2d 670 (Fla. 2d DCA2006) – where current Florida Supreme Court Justice Canady was then-serving on the 2^nd DCA – which provides that “Florida law has long recognized that injunctive relief is available to remedy a violation of a restrictive covenant without a showing that the violation caused an irreparable injury, that is an injury for which there is no adequate remedy at law. Therefore, it logically follows that when a breach of the declaration of covenants is concerned, the association need not first try to cure the violation by utilizing self-help before seeking an injunction from the court to compel the owner to adhere to the covenants.” In other words, while it is typically required to first exhaust all legal remedies which may exist under a contract before seeking an equitable remedy from the courts, this is not applicable in the context of the enforcement of covenants recorded against real property, such as a declaration of covenants for a homeowners’ association.

The 4^th DCA even recognized that §720.305(1), Fla. Stat., provides for equitable relief, even when there is a remedy at law also available. More specifically, §720.305(1), Fla. Stat., provides in relevant part that, “actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member…” The Court notes that, “by using the phrase ‘or both’ that §720.305(1) Fla. Stat., unambiguously gives an association the right to seek relief in equity, even if an action at law is also available to redress the alleged violation. The statute does not limit the availability of equitable relief to situations where legal remedies are inadequate.”

In rendering its opinion, the 4^th DCA recognized its decision is in direct conflict with both the 2^nd DCA and the 6^th DCA, which both previously held that legal remedies must be exhausted before seeking equitable relief, such as an injunction, from the courts and thus certified the question to the Florida Supreme Court for a final determination. Until then, where are we?

If the homeowners’ association is within the territory of the 4^th DCA, then the association can seek an injunction against an owner without having to first employ the legal remedy of self-help as may be set out in the declaration. Meanwhile, the homeowners’ associations within jurisdiction of the 2^nd DCA and the 6^th DCA must exhaust all legal remedies, such as self-help if set out in the declaration, before seeking an injunction from the courts. If the homeowners’ association is located with the 1^stDCA, 3^rd DCA, or 5^th DCA, then whether the association should first exhaust all legal remedies, such as self-help if set out in the declaration, before seeking a court ordered injunction is anything but clear, and such associations will absolutely need good counsel from the association’s attorney.

In case you are wondering which DCA your county is in, refer to the following list:

1} Must exhaust self-help and all other legal remedies before seeking an injunction

- - The 2^nd DCA is comprised of Pinellas, Pasco, DeSoto, Manatee, Sarasota, and Hillsborough Counties.T
  - he 6^th DCA is comprised of Orange, Osceola, Hardee, Highlands, Polk, Charlotte, Collier, Glades, Hendry, and Lee Counties.

2} Can use self-help or seek an injunction:

- - The 4^th DCA is comprised of Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties.

3} Undecided:

- - The 1^st DCA is comprised of Escambia, Okaloosa, Santa Rosa, Walton, Franklin, Gadsden, Jefferson, Leon, and Wakulla Counties.
  - The 3^rd DCA is comprised of Alachua, Baker, Bradford, Columbia, Dixie, Gilchrist, Lafayette, Levy, Marion, Putnam, St. Johns, Suwannee, Taylor, Union, and Volusia Counties.
  - The 5^th DCA is comprised of Bay, Calhoun, Holmes, Jackson, and Washington Counties and all other counties in the Northwest Florida region.

Due to the ever-changing landscape of this important remedy, whether self-help as authorized by the declaration should be utilized before seeking an injunction from the court to order a member to comply with the terms of the declaration, or not, should be fully discussed with the association’s attorney.

November 3, 2025November 3, 2025

Adopting Electronic Voting in Florida

The Statutory Similarities and Differences Applicable to Condominium, Cooperative, and Homeowners’ Associations

Electronic voting continues to become an increasingly attractive option for community associations. The benefits of electronic voting are many and include the following: (i) allowing members to cast their votes from an electronic device anywhere with an internet connection; (ii) helping associations achieve quorum requirements because an electronic vote counts as the member being in attendance at the meeting; (iii) automating the counting and collection of votes thereby reducing the potential for errors associated with manual counting ballots; and (iv) saving associations money by reducing costs associated with the cost of printing and mailing of paper ballots and associated paperwork.

Despite the many benefits of electronic voting, many associations still insist on voting the old-fashioned way and are reluctant to adopt electronic voting. However, as further discussed below, adopting electronic voting is not a complicated endeavor.

So, how can an association adopt electronic voting? In short, at a properly noticed board meeting, the board of directors (the board) of the association must adopt a resolution approving electronic voting.

§§718.128, 719.129, and 720.317, Florida Statutes, applicable to condominium, cooperative, and homeowners’ associations respectively (collectively, the “electronic voting statutes”), require that, for such associations that desire to adopt electronic voting, a resolution of the board is required. Additionally, the electronic voting statutes provide, in pertinent part, that the resolution adopted by the board must provide members the option to receive notice of the opportunity to vote through an online voting system, establish reasonable procedures and deadlines for members to consent electronically or in writing to online voting, and must establish reasonable procedures and deadlines for members to opt out of online voting after giving consent. Therefore, the board will want to utilize the association’s attorney to assist with drafting of the electronic voting resolution to be sure that all statutory requirements are followed.

There are many significant similarities and differences within the electronic voting statutes, too. As to similarities, the electronic voting statutes allow associations to conduct electronic voting through an internet-based online voting system only if electronic voting is properly approved by the board. To vote electronically, a unit owner and/or member must opt in to do so. A member who votes electronically is considered in attendance for quorum purposes. As both a similarity and a safeguard, the online voting system must be able to permanently separate authentication/identifying information from the ballot for elections where secret ballots are provided for in the governing documents.

Additionally, when considering adopting electronic voting, associations should select an electronic voting service provider and platform that meets the statutory specifications as set out in the electronic voting statues. For example, the electronic voting statutes require the following:

- a voting system that is able to authenticate the owner’s identity
- the ability to authenticate the validity of each electronic vote to ensure that the vote is not altered in transit
- the ability to transmit a receipt from the online voting system to each owner who casts an electronic vote
- the ability to permanently separate any authentication or identifying information from the electronic voting ballot rendering it impossible to tie an election ballot to a specific unit or member (note for homeowners’ associations–the foregoing only applies if the association’s bylaws provide for secret ballots for the election of directors)
- the ability to store and keep electronic votes accessible to election officials for recount, inspection, and review purposes.

Regarding pertinent statutory differences, as to condominium associations, if at least 25 percent of the voting interests of the condominium petition the board to adopt electronic voting for the next scheduled election, the board must hold a meeting within 21 days after receiving the petition to adopt the resolution. The board must receive the petition within 180 days after the date of the last scheduled annual meeting. As such, the foregoing method serves as a statutory mechanism for unit owners to force a board to adopt electronic voting.

Additionally, if electronic voting has not been adopted by a condominium association, effective July 1, 2025, §718.128, Florida Statutes, for the first time requires condominium associations to designate an email address to receive electronically transmitted ballots. It also provides for the inclusion of specific language for those electronically transmitted ballots such as the inclusion of a unit number, a printed name acting as a signature, and a prominent capitalized statement explaining that by emailing the ballot the voting unit owner waives anonymity.

Regarding pertinent statutory differences for both homeowners’ and cooperative associations, the relevant electronic voting legislation does not include a provision for a member-triggered petition that would obligate the board to adopt electronic voting as there is with condominium associations. Additionally, if electronic voting has not been adopted by a homeowners’ or cooperative association, there is no requirement that either association designate an email address to receive electronically transmitted ballots. Further, both the Homeowners’ and Cooperative Association Acts provide for specific notice mechanisms for the board meeting at which the electronic voting resolution will be considered, including that written notice of such meeting being mailed, delivered, electronically transmitted (for those homeowners who have opted into receiving electronic notice), and posted conspicuously on the property at least 14 days prior to the meeting whereas, effective July 1, 2025, a condominium association only requires a 48-hour posted notice to adopt the board resolution approving electronic voting. Also, as to homeowners’ and cooperative associations, evidence of compliance with the 14–day notice requirement must be made by an affidavit executed by the person providing the notice and kept as part of the official records.

Overall, for those associations who adopt electronic voting, it presents an opportunity to modernize the voting process, increase member participation at meetings, reduce human error, and save money. By understanding the process associated with adopting electronic voting, coupled with an understating of the pertinent statutory similarities and differences, community associations are well on their way to successfully adopting electronic voting. Of course, best business practice dictates that if your association has questions regarding adopting electronic voting, to assist with drafting an appropriate board resolution, and to ensure compliance with other specific statutory requirements, your association should seek the assistance and guidance of its legal counsel.

October 12, 2025October 28, 2025

The Pre-Suit Mediation Process | Friend or Foe?

Overall, the often statutorily required pre-suit mediation process governed by §720.311, Fla. Stat., can potentially save a community association tens of thousands of dollars by providing an opportunity to resolve the dispute prior to litigation. In fact, a great many disputes resolve themselves at this stage, but not all disputes are subject to the pre-suit mediation requirements. Sometimes opting to use the process is voluntary, and sometimes it is mandatory. Condominium, homeowners’, and arguably cooperative associations can all take advantage of the pre-suit mediation process described in §720.311, Fla. Stat., though there are a few noticeable differences.

As per §720.311, Fla. Stat., election and recall disputes are not eligible for pre-suit mediation. This is because those disputes must be resolved via arbitration by the DBPR Division of Florida Condominium, Timeshares, and Mobile Homes—Arbitration Section or filed in a local court of competent jurisdiction. Other HOA disputes for which the pre-suit mediation process is not required include collection of any assessment, fine, or other financial obligation, including attorneys’ fees and costs, claimed to be due or any action to enforce a prior mediation settlement agreement between the parties.

Regarding HOA disputes that must follow the pre-suit mediation process before the dispute is filed in court, the aggrieved party must follow the pre-suit mediation when the dispute meets one of the following criteria:

1. 1. Between an association and a parcel owner regarding use of or changes to the parcel or the common areas
  2. Other covenant enforcement disputes
  3. Disputes regarding amendments to the association documents
  4. Disputes regarding meetings of the board and committees appointed by the board
  5. Membership meetings not including election meetings
  6. Access to the official records of the association.

As to condominium association disputes, §718.1255, Fla. Stat., provides that in lieu of the initiation of manditory nonbinding arbitration, a party may submit their dispute to pre-suit mediation in accordance with the homeowners’ association pre-suit meditation process set out in §720.311, Fla. Stat. The condominium association disputes eligible for the pre-suit mediation process include the authority of the board of directors, under Chapter 718, Fla. Stat., or association’s documents, involving any of the following:

1. 1. Requirement for any owner to take any action, or not to take any action, involving that owner’s unit or the appurtenances thereto
  2. Alteration or addition to a common area or element
  3. The failure to properly conduct elections
  4. The failure to give adequate notice of meetings or other actions
  5. The failure to properly conduct meetings
  6. The failure to allow inspection of books and records
  7. Challenges to a plan of termination of the condominium pursuant to §718.117, Fla. Stat.

As to condominium association disputes, mandatory, non-binding arbitration or, alternatively; the presuit mediation process, is not required for:

1. 1. Title to any unit or common element
  2. The interpretation or enforcement of any warranty
  3. The levy of a fee or assessment, or the collection of an assessment levied against a party
  4. The eviction or other removal of a tenant from a unit
  5. Alleged breaches of fiduciary duty by one or more directors, or
  6. Claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.

It is also good to know that in any dispute subject to the statutory required pre-suit mediation where emergency relief is required, a motion for temporary injunctive relief may be filed with the court without first complying with the otherwise required pre-suit mediation process.

As to cooperative association disputes, §719.1255, Fla Stat., provides that disputes can be subject to the alternative dispute resolution process set out in §718.1255, Fla. Stat. This statute then refers to §720.311, Fla. Stat., which describes the pre-suit mediation process in detail. Therefore, parties involved with cooperative association disputes follow the same guidelines as condominium association disputes.

Regarding the mediation process itself, pre-suit mediation proceedings must be conducted in accordance with the applicable Florida Rules of Civil Procedure, and that these proceedings are privileged and confidential to the same extent as court-ordered mediation. This means what happens at mediation, stays at mediation (like Vegas)!

The pre-suit mediation process is fully described in §720.311, Fla. Stat. Simply put, the aggrieved party must serve on the other party(ies) (by certified mail, return receipt requested, and regular U.S. mail) written demand for participation in mandatory pre-suit mediation, which must provide a list of five mediators from which the recipient must choose one. The recipient will have 20 days from the date of mailing to serve (by certified mail, return receipt requested, and regular U.S. mail) a written response to the aggrieved party. The pre-suit mediation must then be held within 90 days unless the parties jointly agree to an extension. The parties split the costs of the mediator, and each party is responsible for their own respective attorneys’ fees and costs (unless otherwise agreed to at the mediation as part of any settlement).

The failure of any party to respond to a pre-suit mediation demand, to agree upon a mediator, to make payment of fees and costs within the time established by the mediator, or to appear for a scheduled mediation session without the approval of the mediator constitutes an “impasse” in the pre-suit mediation by such party, entitling the other party to proceed in court and to seek an award of the costs and fees associated with the mediation. Additionally, and most importantly, the party who fails or refuses to participate in the entire mediation process may not recover prevailing party attorneys’ fees and costs in subsequent litigation relating to the dispute should they actually prevail.

If pre-suit mediation is not successful in resolving all issues between the parties, the aggrieved party may file the unresolved dispute in a court of competent jurisdiction. As to any issue or dispute that is not resolved at pre-suit mediation, and as to any issue that is settled at pre-suit mediation but is thereafter subject to an action seeking enforcement of the mediation settlement, the prevailing party in any subsequent litigation proceeding is entitled to seek recovery of all costs and attorneys’ fees incurred in the pre-suit mediation process.

Again, if the receiving party does not timely and properly respond to the aggrieved party’s pre-suit mediation demand, then should the aggrieved party proceed with the litigation and lose, since the receiving party did not comply with the pre-suit mediation demand, they would not be entitled to their otherwise awardable prevailing party attorneys’ fees and costs due to their failure to comply. As those legal procedures and their surrounding strategy have a signficant impact on association legal counsel familar with the intracacies of community association law should be involved.

September 12, 2025September 25, 2025

Construction Defects | From the Frying Pan into the Fire

At times the law can be quite cruel. A recent appellate case from Florida’s Fourth District Court of Appeal, Vuletic Group LLC d/b/a Concept Construction v. Malkin, Case No. 4D2024-1589 (Fla. 4th DCA July 16, 2025), reminds us all of this salient fact.

In Vuletic Group, the parties contracted with one another in 2018 for a house remodeling project. Around November 2019, the homeowners terminated the contract and stopped paying the contractor. As a result, the contractor sued the homeowners for nonpayment. The homeowners then made a counterclaim against the contractor for breach of contract and construction defects. In the counterclaim the homeowners alleged that the contractor breached its contract by failing to supervise, coordinate, schedule, and/or manage a significant number of subcontractors and vendors working on the renovation project which ultimately led to multiple construction defects and deficiencies.

In January 2023 a bench trial (a non-jury trial) was held during which the homeowners presented expert testimony regarding the anticipated costs to repair and remedy all the issues allegedly caused by the contractor’s breach of contract, amounting to $414,372 in damages. Ultimately, the trial court ruled in favor of the homeowners and awarded them damages in the amount of $499,250, which also included pre-judgment interest. After the trial court’s ruling, the contractor appealed the case to the Fourth District Court of Appeal.

The contractor argued to the Court that the trial court had incorrectly awarded damages to the homeowners because the damages should have been calculated using cost figures as of the date of the breach, not cost figures as of a date after the date of the alleged breach. More particularly, the homeowners’ expert testified at trial that the cost to remedy all the issues would be $414,372 using cost figures as of September 2, 2022—a date nearly three years after the date of the breach of contract. As you will read, this turned out to be a fatal flaw in homeowners’ case against the contractor. The Court’s role was to determine whether or not the trial court applied the correct measure of damages to the homeowners’ breach of contract claim.

Early in the Court’s opinion, the Court points out that “[d]amages for a breach of contract should be measured as of the date of the breach;” “[f]luctuations in value after the breach do not affect the nonbreaching party’s recovery [of damages];” and “[d]amages are not supported by competent, substantial evidence when damages are assessed for a time other than that of the time of breach.”

The Court went on to cite a Florida Supreme Court case which directly speaks to the issue and provided that damages for a breach of contract case are measured as of the date of the breach in Grossman Holdings Ltd. V. Hourihan, 414 So.2d 1037 (Fla. 1982).

The Court went on, citing yet another case where a trial court found that damages for replacing a defective roof were based on the cost of damages calculated five years after the occurrence of the breach of contract. On appeal in that case, the Second District Court of Appeal reversed the trial court’s ruling because the cost of damages should have been determined as of the date of the breach in Peach State Roofing, Inc. v. 2224 South Trail Corp., 3 So.3d 442 (Fla. 2d DCA 2009). Clearly then there is a substantial caselaw on this particular subject that makes it patently clear that the construction damages proven at trial must be based upon the actual date of the breach of the contract.

In accordance with the aforementioned, the Court pointed out that the homeowners presented no evidence to establish the amount of damages as of the date of the contract breach itself but rather presented evidence of damages which were nearly three years after the date of the alleged contract breach. Because the damages must be measured as of the date of the breach, the damage award from the trial court was not supported by competent, substantial evidence and was therefore fully reversed. It gets worse…much, much worse.

Rather than remanding the case for further proceedings and allowing the homeowners to establish the damages as of the time of the breach, the Court held that the homeowners were not entitled to remedy their own failure to present competent, substantial evidence of damages as of the date of the breach of contract to support their claim. Thus, the homeowners were not entitled to “a second bite of the apple” to prove their damages since they already had the opportunity to prove their case and failed. Therefore, since the homeowners were required to prove their damages as of the date of the breach and did not do so, they failed to meet their burden of proof. Therefore, the Court reversed the trial court’s judgment and instructed the trial court to enter judgment in favor of the contractor. Now, here comes the really bad part.

While not addressed in Vuletic Group, the effect of the Court’s ruling will also allow the contractor to seek its prevailing party attorney’s fees and costs against the homeowners at both the trial court and appellate court levels. So at the end of the day, not only did the homeowners lose their damage claim, which really should have gone their way had they proven their damages as of the date of the breach rather than a later date, but also the homeowners will likely be faced with having to pay prevailing party fee awards in favor of the contractor that allegedly caused the homeowners’ damages in the first place. Talk about a double whammy, wow!

Choosing the right attorney is no small undertaking. It is so very important that the attorney has a thorough understanding of the body of law at issue. When you hire board-certified attorneys, the Florida Bar is affirming the attorney’s expertise in a particular field. Is your association using a law firm with board-certified attorneys?

August 6, 2025September 10, 2025

What Managers and Board Members Need to Know About House Bill 913

On June 23, 2025, Florida Governor DeSantis signed House Bill 913 (HB 913) into law. Its provisions took effect on July 1st. In last month’s Roundup we discussed how HB 913 amends the Florida Condominium Act, Chapter 718, Fla. Stat. In today’s article the Roundup considers how HB 913 affects Chapter 468, Fla. Stat., which addresses the statutory requirements for both management companies and individual licensed community association managers (LCAMs). The following information is presented generally in the order in which it is presented in HB 913.

If an LCAM’s license is revoked, then such individual cannot own any interest in a management company during the 10-year period after the effective date of the license revocation and cannot reapply for ownership in a management company until such 10-year period is completed.

LCAMs must create and maintain an online licensure account with the Florida Department of Business & Professional Regulation (DBPR). In addition, all LCAMs must both identify the community(ies) for which he or she is designated as an on-site manager, and such records must be updated within 30 days of any changes.

A community association management company must identify for the DBPR all managers that it employs to provide community association management services.

If an LCAM has his or her license suspended or revoked, then the DBPR is obligated to provide notice to the LCAM’s management company in which they are employed and must also notice all community associations to which the LCAM is assigned.

An LCAM must not knowingly perform any act directed by a community association if such act violates any state or federal law.

If the community association is subject to the statutory requirements of the structural integrity reserve study and/or milestone report, then such LCAM must comply with all relevant sections of law as directed by the community’s board of directors.

All management contracts must have, in at least 12-point type, the following language: “The community association manager shall abide by all professional standards and recordkeeping requirements imposed by part VIII of chapter 468, Fla. Stat.

An LCAM must attend at least one board meeting or member meeting per year (while this is not a new requirement in HB 913, it is important to note).

All LCAMs must post their hours of availability and summary of duties in a conspicuous place in the community, which must also be posted on a website (or app) if the association is required to have one (while this is not a new requirement in HB 913, it is important to note).

LCAMs and management companies must provide a copy of the management contract if requested by a member. (This obligation is separate and distinct from an official record request, and while not a new requirement in HB 913, it is important to note.)

A rebuttable presumption of conflict of interest exists if the LCAM, or their relative, proposes to enter into a contract or other transaction with the association or actually enters into such contract for services or goods other than community association management services. Such a proposed conflict must be disclosed on the board meeting notice and agenda along with a copy of the proposed contract attached to the meeting notice (and such contract must be approved by two-thirds of all directors present at the meeting). However, if the community association manager or firm previously disclosed a conflict of interest in an existing management contract with the association, such conflict of interest does not need to be additionally noticed and voted on during the term of the management contract but, upon renewal, must be noticed and voted on as described above.

If a violation of the conflict-of-interest requirements occurs, then the contract itself is voidable by the board; and the association only owes the vendor for monies due up to the date of cancellation and is not liable for any other damages including liquidated damages, etc. which may otherwise be due under the contract.

If the association receives and considers a bid for a good or service that exceeds $2,500, and the good or service is unrelated to community association management services, and such good or service would be reasonably construed as a conflict of interest under § 468.4335 F.S., the association must receive multiple bids from other providers; however, this requirement of multiple bids does not apply to any goods or services that are disclosed in the management services contract as a conflict of interest.

If you have any questions regarding anything discussed herein, please be sure to discuss them with your association’s legal counsel.

April 4, 2022April 5, 2022

Board Member to Board Member Emails—Are They Official Records? | Division of Condominiums Muddies The Waters

Board Member to Board Member Emails—Are They Official Records? Division of Condominiums Muddies The Waters

On January 6, 2022, the Department of Business and Professional Regulation (DBPR), through the Division of Florida Condominiums, Timeshares, and Mobile Homes (Division), entered a Final Order Granting Petition for Declaratory Statement in the matter of In re: Petition for Declaratory Statement, James Hanseman, Petitioner (the Hanesman Declaratory Statement). In this Final Order, the Division Director (Chevonne Christian) stated that all board member to board member emails are official records of the association. Unfortunately, this Order was entered i) without regard to who owns the device from which the email was sent;

ii) without regard to whether the manager was included in the email chain; iii) without regard to whether the email was sent to a minority or majority of board members; and iv) without regard to the board members’ constitutional right of privacy. The decision does not consider the sacrosanct requirement that a quorum of board members is needed to conduct business. If a board member can enter into a conversation with a minority of the board without triggering a required meeting notice, then a board member should also be able to communicate, by any means, with a minority of the board, including email, without it rising to the level of being considered an official record of the association. However, given the scope of the Order, this will likely require an act of the Florida legislature to accomplish.

In general, a petition for declaratory statement may be used to resolve questions or doubts as to how the statutes, rules, or orders may apply to the petitioner’s particular circumstances. These statements are only binding upon the parties who join in the proceeding. The Division issues “declaratory statements” when requested by parties who are unclear about the applicability of portions of the Condominium Act, Chapter 718, Florida Statutes. Declaratory statements are formal written positions taken by the Division on the laws and rules the Division is authorized to enforce and interpret. Importantly, with regard to the Hanesman Declaratory Statement’s precedential value, it has none whatsoever. It only applies to the parties named in the Hanesman Declaratory Statement, which includes the petitioner, Mr. Hanseman, and the Wildewood Springs II-B Condominium Association Inc. This decision is merely persuasive authority, at best. In fact, the Division does not even have to follow their own written precedent. Yet, it is predictive as to how the Division will rule should a similar fact pattern be presented. So, beware!

The Hanesman Declaratory Statement could stand for the broader proposition that all director emails are official records of the association, or perhaps it stands for the narrower proposition that board member emails are not automatically excluded as an official association record merely because the emails were sent from a director’s private email address and privately owned computer. Time will tell, I hope. In the meantime, applying its broadest interpretation means that the Division has now opined that all director-to-director emails are official records. This broad interpretation means such emails must be produced in response to a member’s official records request, unless later excluded from production due to matters of privilege. This broad interpretation also means that for all requests to inspect the official records of the association, directors will have to search their own hard drives and provide copies to the manager or whoever is coordinating the inspection. If this broad interpretation is to be applied, it is yet another burdensome requirement for board members and could be viewed as an extreme overreach of a governmental administrative agency. In light of this possible interpretation and obligation to turn over board member to board member emails, who will want to serve on the board, now?

Let us examine the history of this important topic. On March 6, 2002, Sue Richardson, the Chief Assistant General Counsel of the DBPR, issued an opinion which provided that “[c]ondominium owners do have the right to inspect email correspondences between the board of directors and the property manager as long as the correspondence is related to the operation of the association and does not fall within the…statutorily protected exceptions…[The DBPR does not have] regulations expressly requiring archiving emails, but…if the email correspondence relates to the operation of the association property, it is required to be maintained by the association, whether on paper or electronically, under chapter 718, Florida Statutes.”

In Humphrey v. Carriage Park Condominium Association Inc. Arb. Case No. 2008-04-0230 (Final Order, March 30, 2009), the arbitrator of the Division ordered that

“…emails…existing…on the personal computers of individual directors…are not official records of the association…Even if directors communicate among themselves by email strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change. Similarly, an email to an individual director or to all directors as a group, addressed only to their personal computers, is not a written communication to the association.”

The arbitrator reasoned that “[t]his must be so because there is no obligation to turn on [the] personal computer with any regularity, or to open and read emails before deleting them.”

Then, on July 1, 2014, the Florida Legislature amended s. 718.112(2)(c) to provide that board members may communicate via email. Just because the legislature clarified that directors may do so does not mean that such email communications should automatically be considered official records of the association. Board members are not publicly elected officials. Yet, the Division’s recent Hanseman Declaratory Statement creates a basis to conclude that the Division desires to hold a director’s email communications to the same standards.

A condominium association is a privately owned entity whose members elect representatives to effectuate the orderly operations of the association. Serving as a board member of a condominium association is not at all akin to holding public office, and in our opinion, board members should not be held to the same standard as that of elected officials. The last thing a community association board member needs is to be micromanaged by one or more cantankerous owners and the vocal minority.

In the Hanesman Declaratory Statement, Ms. Christian takes the position that because §718.111(12)(a), Fla. Stat., provides, in relevant part, that the “official records of the association” include “all of the written records of the association not specifically included in the foregoing which are related to the operation of the association,”

that nothing exempts records when created or transmitted with a board member owned device rather than association owned device.

She then applied what she referred to as the plain meaning of the term “writing,” referring to the definition of the term from Black’s Law Dictionary (11th ED. 2019), which provided “emails constitute a form of writing.”

In fact, had the Florida Legislature intended for emails from one board member to another to be considered official records subject to inspection, then when it amended Chapter 718.112, eff. July 1, 2018, to provide that “members of the board of administration may use email as a means of communication but may not cast a vote on an association matter via email,” the legislature could have clarified that such emails were considered a part of the official records. Obviously, the legislature did not do so. This can only mean that the legislature had no intent whatsoever for a director’s email sent from their personal computer to a minority of other board members to be considered an official record.

What is the end game of the Hanesman Declaratory Statement? The implications are far-reaching, indeed. Does this mean that text messages must be disclosed? What about communications on messaging apps such as WhatsApp and Signal? If not, why not? The logic is arguably the same. What about conversations held with a board member outside of a meeting—must the board member make a disclosure he or she had such conversation at the next noticed meeting? Where does it end?

It is rather common knowledge that there is already a mechanism in the law to acquire documents of every kind. It is called a “subpoena duces tecum” and is used in active litigation to compel production of documents. In this author’s opinion, that is the only circumstance in which a board member’s private emails must be produced, unless and until the Florida Legislature or an appellate court squarely addresses this issue.

As the phrase goes, “one step forward and two steps back.” In other words, while a board member can use email to communicate with a fellow board member, it may come with the steep price of later required disclosure. So, if you want to avoid email disclosure, you may want to consider using a phone to discuss matters. If you want to play it really safe, then be sure to only chat to a minority of board members, too. Until there is an appellate court decision or statutory law that squarely addresses email disclosure, please be sure to discuss these matters with your association’s attorney. In the meantime, perhaps consider using dedicated association-hosted email addresses for association-related emails.