"Emergency" Board Meetings Require Real Emergencies

Posted on April 11, 2011 by Scott Gordon

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.

 

 

 

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A Few Important Differences in Florida's Laws Governing Condominiums and Cooperatives

Posted on January 27, 2010 by Scott Gordon

ROC managers, board members and the professionals that advise them quite often long for the "good old days" when the Florida Statutes governing condominium associations (Chapter 718) and cooperative associations (Chapter 719) were almost identical in provisions concerning elections, eligibility to run for the board, and waivers of financial reporting requirements. 

Those days are, for better or for worse, long gone.   Here's a quick sampling of the just a few of the important differences that now exist between the statutes governing cooperatives and condominiums:

  1. Terms of board members:   F.S. Section 718.112(1)(d) now provides that the terms of all members of the board of directors of a condominium association expire at the annual meeting unless a majority of the unit owners approve a provision in the bylaws that permits staggered terms of no more than two years.   F.S.  Section 719.106(1)(d) imposes no such term limitation on board members in cooperative associations.
  2. Eligibility to serve as a board member:   F.S. 718.112(1)(d) also prohibits co-owners of a unit in condominium associations with more than 10 units from serving on the board at the same time and also prohibits persons who are more than 90 days delinquent in payments of any fees or assessments due to the association, and many persons convicted of a felony from such service.  There is also a rather curious requirement that any candidate for the board of a condominium association sign a form certifying that "he or she has read and understands, to the best of his or her ability, the governing documents of the association" as well as the provisions of Chapter 718 and any " applicable rules".   Any member of a cooperative association that wishes to run for the board of directors will find that Chapter 719 does not contain any of these eligibility requirements or prohibitions if he or she wishes to serve his or her community.
  3. Financial reporting requirements:  F.S. 719.104(4)(b) allows cooperative associations that are larger than 50 units  to waive the requirement that the association's financial statements compiled, reviewed or audited.   This waiver must be done annually by the vote of a majority of the voting interests present, in person or by proxy, at a duly called membership meeting.   F.S. 718.111(13) now prohibits a condominium association's membership from waiving these financial reporting requirements for more than 3 consecutive years.

I've just highlighted a few of the many differences that now exist between Chapters 718 and 719.   We haven't even touched on Chapter 720 HOA's or those "hybrid" ROCs that may or may not be governed exclusively by the provisions of Chapter 617, Florida's statutes for not-for-profit corporations.   With the next session of the Florida legislature just a few months away, we'll just have to wait and see if there's any hope of returning to those "good old days".

Stay tuned.

 

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