Those of you that have attended our seminars for resident owned communities know that I stress the importance of all board meetings being properly noticed and open to all association members.
I'm asked at least several times every year whether a ROC board can meet in "emergency" session and thus dispense with the requirements to post a notice of the board meeting at least 48 hours before the meeting (or, in certain situations, to provide the notice to the members at least 14 days before the meeting).
Sometimes, the question involves an item that was not included in the agenda for an otherwise properly noticed board meeting but was considered or attempted to be considered by the board on an "emergency" basis.
The Florida Statutes governing condominium associations, cooperative associations, and mandatory homeowners' associations provide for the board to act in an emergency without first providing notice to the membership. In fact, several years ago, the legislature added Florida Statute Section 718.1265 to the statutes governing condominium associations to specifically provide for a condominium association's emergency powers in response to "damage caused by an event for which a state of emergency is declared" under Florida law.
Neither cooperative associations nor mandatory homeowners' associations were granted the specific powers set forth in F.S. Section 718.1265 and an emergency situation could exist in a community even if a state of emergency has not been declared.
So exactly what constitutes an "emergency?
Here's my simple rule of thumb: Can the situation wait until proper notice is given? In other words, will the community suffer severe damage that will be cost a substantial amount to repair or be impossible to repair if the board waits 48 hours before it acts?
Here are a few examples of what I consider an "emergency":
- The need for immediate response either before, during, or after a hurricane
- The clubhouse is destroyed or severely damaged by fire or weather related event
- A water main that serves the community breaks and sewage is running down the streets of the community
And, regardless of what board members may think, I don't believe any of the following constitute an "emergency":
- An important issue must be voted on before the next scheduled board meeting and was not placed on the agenda for the board meeting that is scheduled for today
- The association has an opportunity to buy a truck at a great price but has been told it must act today
- A crack has developed in one of the shuffleboard courts and the contractor says he'll give the association a "bargain" price if the board can commit to him immediately
Board members should use a common sense approach when considering whether "emergency" action is permitted. The members of community associations have the right to know when the board is meeting and what issues the board is considering--and unless a situation truly demands immediate action in order to protect the community, its residents, and its property, the board should simply schedule a "special" board meeting to deal with the situation and post the notice and agenda as required by Florida law.
Better to wait that short period of time than deal with angry residents or have to explain to our Department of Business and Professional Regulation why the board violated Florida law.