Sunshine Laws Do Not Apply to Community Associations (Open Meetings are Still Required) [4-20-18]
|Article Courtesy of JDSUPRA
Published April 20, 2018
Frequently, there are complaints by association members regarding violations of Florida’s Sunshine Laws, Chapter 286, Florida Statutes, which mandates public access to records and meetings. Sunshine Laws only apply to state or local governmental organizations. Although there are similar open meeting requirements for community associations, they are private organizations that are governed by entirely separate laws. Both homeowners’ associations and condominium associations are required to provide members with notice and access to meetings in which association business is discussed.
Florida’s Homeowners’ Association Act, Chapter 720, Florida Statutes, and Condominium Act, Chapter 718, Florida Statutes, both provide that when a quorum of the association’s board of directors gathers and discusses association business, such meeting constitutes a board meeting and is subject to the proper notice requirements. A quorum of the board is typically a majority of board members. When a quorum of the association’s board meets and discusses association business, the open meeting requirements apply even if the meeting is termed a “workshop” or if a majority of the board members are walking around the property with the landscape contractor. Members of the association have a right to attend the meetings and speak as to any designated agenda items.
Florida’s Homeowners’ Association Act, Section 720.303(2), provides in part, that:
Meetings of the board must be open to all members, except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. …Members have the right to attend all meetings of the board. The right to attend such meetings includes the right to speak at such meetings with reference to all designated items.
…Notwithstanding any other law, meetings between the board or a committee and the association’s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors.
Florida’s Condominium Act, Section 718.112(2)(c), also provides in part, that:
Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. …The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. …Adequate notice of all board meetings, which must specifically identify all agenda items, must be posted conspicuously on the condominium property at least 48 continuous hours before the meeting except in an emergency.
…Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the unit owners does not apply to meetings between the board or a committee and the association’s attorney, with respect to proposed or pending litigation, if the meeting is held for the purpose of seeking or rendering legal advice; or Board meetings held for the purpose of discussing personnel matters.
While it is prudent for directors to refrain from discussing association business outside of a properly noticed meeting, it is permissible for board members to meet and discuss association business when there is less than a quorum of the board present.
If you or a loved one are in need of legal advice, contact our HOA attorneys today to discuss your case.