Labor Day has come and gone, several tropical systems are swirling in the Atlantic (you may recall that all of Florida was in panic mode awaiting Irma this time last year) and our snowbirds will be returning before we know it.  Seems like a good time to discuss some of the changes made to Chapter 719 by Florida’s legislature earlier this year–all of which became effective on July 1, 2018:

  • Florida Statutes Section 719.104(2)(a) was revised to provide that the book or books containing the minutes of all meetings of the association, of its board of directors, and of its unit owners now apparently must be retained forever as the provision that stated “which minutes shall be retained for a period of not less than 7 years” has now been deleted.  That same deletion occurred in the paragraph relating to the retention of the association’s accounting records which now must also apparently be retained forever.
  • Section 719.104(2)(a) was also revised to include “electronic records” relating to voting as part of the documents related to voting by unit owners that must be maintained for a period of 1 year after the date of the election, vote, or meeting to which the document relates.
  • Section 719.104(2)(b) now clarifies that the association has 10 working days (rather than 5 working days) after its board or designee received a written request to inspect or copy official records to make those records available.
  • Co-owners of a unit in a cooperative with more than 10 units can no longer serve as board members at the same time unless those co-owners own more than one unit or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.   This revision to Section 719.106(1)(a)1 follows a similar revision to Florida’s condominium association statutes that occurred several years ago.
  • Section 719.106(1)(c) was amended to allow for board members to use email as a “means of communication” with other board members but board members may not cast a vote on an association matter by email.  I have a feeling that this amendment may create all kinds of issues–not the least of which will be whether or not these email communications might in some cases become part of the “official records” of the association.  I’m also concerned that these email communications between board members may end up becoming the “real” board meetings and will be very interested in seeing whether this provision creates new headaches for board members and managers of resident owned communities in our state.

Stay tuned and I’ll be posting Part II of the 2018 revisions to Florida’s Cooperative Association Laws later this month.


As most of the followers of this blog know, Florida’s legislature is currently in session in Tallahassee.

The bill that may be of most interest to community association managers, homeowners, and those of us that provide legal assistance and advice to ROCs-House Bill 319–has been making its way through the various legislative committees.

The latest version of this bill–as of the close of business on Monday, February 27–has two very interesting "tweaks" that will impact cooperatives:

First, there is now an amendment to Florida Statute Section 719.108 that will extend the "safe harbor" provisions found in the condominium association and mandatory homeowners’ association laws to cooperative associations.  These "safe harbor" provisions will limit the liability of a first mortgagee or its successors or assignees who acquire title to a cooperative unit by either foreclosure or by deed (or assignment?) in lieu of foreclosure for the unpaid assessments that became due before the mortgagee’s acquisition of title to the lesser of:

  1. the unit’s unpaid common expenses and regular periodic or special assessments which accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association, or
  2. one percent of the original mortgage debt.

There’s been a good deal of controversy and discussion about whether this "safe harbor" prevents an association from trying to recover from the mortgagee other costs and expenses, such as amounts charged the association by law firms or other companies trying to collect the unpaid amounts from the delinquent unit owner.  Cooperative associations have, for the most part, not been involved in this battle as no "safe harbor" provisions existed in the statutes governing cooperatives.  

A very curious revision in the most recent version of 319 is the removal of the requirement that newly elected or appointed members of the board of directors of cooperative associations either:

  • sign a document certifying that they have read the association’s governing documents and will faithfully abide by those documents and his or her fiduciary responsibilities to the association in serving on the board or
  • attend and successfully complete a board member certification course that has been approved by Florida’s Department of Business and Professional Regulation.

This requirement was incorporated into Chapter 718, which governs condominium associations, several years ago and was in the first version of HB 319 that I reviewed a few months ago.  I’m not sure exactly why this latest version of House Bill 319 no longer contains this requirement.

In any event, there’s much more to HB 319, and I’ll continue to post entries on its progress.

Stay tuned…


Followers of this blog know that I frequently caution that almost all board meetings in resident owned communities must be properly noticed and open to association members.  There are specific provisions prohibiting board members from meeting "behind closed doors" in the statutes governing condominium associations, cooperative associations, and mandatory homeowners associations.

While it’s clear that these statutory provisions focus on ensuring that association members are provided with adequate notice of matters that are to be considered by the board of directors, there’s another very important consideration that can be illustrated by the recent difficulties faced by Susan G. Komen  For the Cure after its decision to no longer offer grants to Planned Parenthood for mammograms was made public.

From what I’ve read about the initial decision, there was little if any input requested from or given by  the many local organizations that help fund. Komen .  In fact, it appears that some of Komen’s board members were unaware of the decision–which had been made in the latter part of 2011

As everyone knows, once Komen’s decision became public, a firestorm of negative publicity erupted–and even though Komen apparently reversed its decision shortly after the media picked up on the story, I have to believe that most of us will no longer view Komen in quite the same way as we did before all of this occurred.

My assumption is that no law prevented Komen’s leadership from meeting "behind closed doors" when it concluded that the grants to Planned Parenthood be discontinued.   When a board is allowed to isolate itself from its members it’s all too easy–and unfortunately all too common–to make decisions in a vacuum that prevents any factors or considerations other than those of the board members from being heard..  If one or two of those board members are particularly overbearing, it’s not too much of a stretch to see how a ROC board could find itself regretting a decision made "behind closed doors" once that decision is made public and legitimate concerns of the members are finally heard.

This is a very important "side effect"  of the laws requiring open board meetings and member input at those meetings–no "vacuum" can exist if those laws are followed.   Every resident owned community benefits when decisions are made only after the members have been given the opportunity to have their say.  

I wonder if Komen’s leadership wishes it had given its supporters that opportunity before making its initial decision on the grants to Planned Parenthood

House Bill 1195  made its way through the Florida legislature and was presented to our Governor on June 13.  It appears that our Governor will sign the bill–although nothing is certain nowadays–and  the provisions contained in HB 1195 that amend various sections of Chapters 718, 719, and 720 of the Florida Statutes will become effective on July 1, 2011.

There’s a very curious amendment to F.S. Section 720.303 that will impact the ability of ROC board members and managers to control the behavior of members attending board meetings.

We all know that unit owners are entitled to attend almost all board meetings of a condominium or cooperative association and are entitled to speak on all designated agenda items.  Lot owners in mandatory homeowners’ associations have a similar right to attend meeting of their association’s board and, according to F.S. Section 720.303(2)(b), they also have the right "to speak on any matter placed on the agenda by petition of the voting interests for at least 3 minutes."

Chapters 718, 719, and 720 each contain provisions allowing the association to adopt reasonable written rules governing the frequency, duration, and manner of unit owner statements.

But what exactly constitutes a "reasonable" rule in regards to "duration"?   In other words, how long should a member be entitled  to speak on a particular agenda item?

There is nothing in the condominium or cooperative statutes to help answer this question.  However, ROC managers, board members, and their attorneys could look to that "3 minute limitation" in F.S. Section 720.303(2)(b) for some guidance.   We’ve thus often suggested to our ROC clients that limiting a member to speaking for no more than three minutes on any agenda item would appear to be reasonable.

However, if HB 1195 is signed by the Governor, effective July 1, 2011, that three minute standard will be removed from F.S. 720.303(2)(b).  Members attending board meetings in mandatory homeowners associations will have the right to speak at such meetings "with reference to all designated items".

It’s interesting that the provision does not specify "designated agenda items" as do both the similar provisions in Chapters 718 and 719.

While I have no idea why the "3 minute limitation" was removed, I do know that it’s still very important to have reasonable written rules governing the behavior of members at board and membership meetings.

Hopefully, resident owned communities that don’t have those written rules will put that task on their "to do" lists this summer.


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.




I’m surely not alone in trying to understand the tragedy that occurred just over a week ago in Tucson.   Regardless of one’s political views, it’s certainly worth considering the clear lack of civility and common courtesy that seems to be the rule rather than the exception throughout our country today.

Several days after the shootings in Arizona, I attended a meeting at one of the communities we represent in Southwest Florida and was saddened to observe a level of disrespect and rage that simply has no place in ROCs.   After the meeting, several residents mentioned to me that had I not attended, the meeting would have been disrupted by a number of unit owners.   Several other members approached me after the meeting and stated that I had been "duped" and hadn’t heard the "other side" of the story.

As an attorney that represents many community associations, I’ve often had to explain to unit owners that we don’t have "a dog in the fight".  In other words, my role is not to take sides on any particular issue being considered by a community–I may point out factors to an association’s board of directors and membership that should be considered but assuming that the actions being discussed by the association do not violate any state, federal, or local laws, my job is to help ensure that the process that leads to the result is proper and legal.

Board members are volunteers and it’s very troubling to attend unit owner meetings where residents fail to treat a director with even a minimal amount of courtesy and respect.    When a board member is shouted down or where his or her name is met with hisses or jeering, I find myself wondering what causes unit owners to demonize one of their neighbors and refuse to listen to any opinion other than their own?

How can a resident owned community survive if members no longer treat other members with simple courtesy and respect?   Does any resident want to live in a community where issues are allowed to fester and be fed by rumor mongering and unfounded criticism of the motives of board members until those issues explode?   Wouldn’t that resident much rather live in a community where issues are resolved by civil discussion and debate?

Every member of a resident owned community has the right to attend almost every association meeting and can inspect numerous records of the association.  For example, Florida Statutes Sections 719.106 and 719.104 call for open cooperative association board meetings and access to a cooperative association’s official records.

At the same time, every association member has an obligation to be fully informed about issues that come before the board, and to treat all board members–and all unit owners–with courtesy and respect.

In a month where we cope with the carnage in Tucson and commemorate the life and death of the Reverend Martin Luther King, Jr., I truly hope that we all rediscover the art of listening and treat each other with the civility that every one of us deserves.



I was contacted by a board member of a resident owned cooperative earlier this month with a rather interesting situation.  One of the unit owners was videotaping the board meetings and now wanted to broadcast those videotapes on the "in house" channel that served the community.   Was the association’s board required to allow the unit owner to broadcast these videotapes?

The statutes governing condominium, cooperative, and mandatory homeowners associations provide that a member is entitled to videotape board meetings.  For example, Florida Statute Section 719.106(1)(c) provides in part that "any unit owner may tape record or videotape meetings of the board of administration."

However, the right to record or videotape does not create a right to broadcast that tape recording or videotape and there is clearly nothing in any of the applicable statutes or Florida Administrative Code sections that requires the association to allow an association member to broadcast the videotape or recording on the association’s "in house" channel.  

Here are a few reasons why I suggest that a resident owned community not broadcast board meetings (either live or by video or audio replay) on the community’s "in house" channel:

  • Many board members and unit owners may feel inhibited by the knowledge that their every word and action at the meeting will be broadcast throughout the community.  Some people simply don’t feel comfortable speaking or otherwise participating when they are being videotaped.
  • There’s a real danger that board meetings–where the business of the association is supposed to be conducted–will become "media events" or "performances".  While CSPAN certainly has helped open the doors to the workings of our Federal government and the meetings of many governmental boards and agencies are televised, community associations are a different animal--ROC board members are volunteers and Florida’s ‘government in the sunshine" law doesn’t apply.  I’d suggest that many unit owners in a resident owned community would be less willing to serve on the ROC board knowing that the board meetings would be broadcast on the "in house" channel.
  • Unless there is very controversial item on the agenda, many, if not most, unit owners simply don’t attend board meetings.  Unit owner participation is both encouraged by Florida’s statutes and important to the overall health of resident owned communities and my suspicion is that even fewer unit owners will attend board meetings in person if these meetings are broadcast.

I’m also concerned that the taping won’t accurately reflect the meeting–perhaps the video or audio quality won’t be sufficient, or perhaps the person taping the meeting will alter the tape for innocent (or not so innocent) reasons. 

And if the association decides to supervise the taping and broadcasting of the meetings, wouldn’t that tape now become an "official record" of the association?  Does the association really want to be responsible for safeguarding these tapes as "official records" and producing them in response to a unit owner’s record inspection request?

Obviously, if a unit owner wants to make a video or audio tape of a board meeting available to the other members of a ROC he or she can certainly do so–but I’d suggest that an association and its board is better served by not allowing those tapes to be part of the programming on the association’s "in house" channel.

Most ROC managers and board members know that Florida statutes governing condominium associations and cooperative associations allow directors to attend a board meeting by phone.  

While the statutes governing mandatory homeowners associations don’t provide for an HOA board member to appear by phone at a board meeting, if the HOA is a not-for-profit corporation (and most are), the provisions of Florida Statute Section 617.0820(4) may apply and allow HOA directors to participate by "any means of communication by which all directors participating may simultaneously hear each other during the meeting".

The statutory provisions governing condominium and cooperative associations focus on the ability the directors not attending the meeting in person to hear and be heard by the board members attending in person as well as the unit owners present at the board meeting.  Both statutes (Section 718.112(2)(b)5 for condominium associations and 719.106(1)(b)5 for cooperative associations), in contrast to Section 617.0820(4), specifically refer to a "telephone conference" and the use of a "telephone speaker".

But what about Skype?

Many of my blog readers may know that Skype is a free computer program that allows its users to speak at no expense with other Skype users through their computers via the internet.  

One of the manufactured housing cooperatives we represent was thinking about using Skype as a substitute for phone conference calls for directors who could not appear in person for board meetings.   At the time, I hadn’t sampled Skype and felt that the process might be too cumbersome and was concerned about statute’s specific reference to the use of a telephone.

That was several months ago–before I retired the old but trusty laptop that my younger daughter had handed down to me and purchased a new laptop with a built-in web camera feature.   I thus had an excuse to try Skype and was very impressed with the audio and visual quality of the connection (no doubt to the amusement and mild annoyance of my daughters and one of my nieces who were the first three recipients of my Skype "test run" and who of course have used Skype for several years).

I visited Skype’s website and it appears that Skype users can easily arrange for conference calls that will allow everyone on the call to hear and be heard.   I can certainly picture board meetings where there will be a laptop (rather than a telephone speaker) in the center of the table at the ROC clubhouse where the meeting is being held–all at no cost to the association other than the ongoing monthly charge for internet service and, if a member’s laptop is not on that clubhouse table, the one-time charge for the association to purchase a laptop.

While using Skype rather than a telephone speaker may not technically constitute a "telephone conference," I would certainly hope that as long as all board members and unit owners can hear and be heard, a board meeting where some directors attend by Skype would meet the statutory requirements.

I’m can’t wait for my next chat with that forward thinking ROC.

What can the directors or other members of a ROC do when the President refuses a request to bring an item before the board for consideration?

There are a number of factors that should be considered in answering this question:

  • Traditionally, the President (or the board’s chairperson) has been given the task of setting the agenda for meetings of the directors.  However, it’s also customary that the President consult with the other directors when setting that agenda.
  • There’s certainly nothing wrong with allowing the President and the other members of the board to exercise a reasonable amount of discretion in setting the agenda.   Clearly, no purpose is served by allowing an issue that has already been decided by the board to have that issue placed on the agenda simply because a board member or other resident disagrees with the board’s decision.
  • However, the continual refusal of a President to place an item on the board meeting agenda may be a symptom of dangerous divisions within the board and the entire community.   When a ROC board member complains to me that his or her President will not place an item on the board meeting agenda, that’s a warning sign that requires my contacting the ROC manager to determine the reasons for the refusal to place the item on the agenda.    Quite often, I’ll learn from the community’s manager that there are legitimate reasons for the President’s position and at the same time will discover that personality conflicts or other issues are preventing the board from effectively governing the community.

If the President’s refusal to place an item on the agenda is not justified, board members should review the association’s bylaws.   The board members themselves usually appoint the association’s officers, including the President, and a President that refuses to listen to a majority of his or her board members runs the risk of being removed from his office by his or her fellow board members.   While he or she would remain on the board, that removed President would no longer be able to unilaterally control the agenda.

I’ll be posting the dates and locations of our seminars for February and March in my next blog entry.   We’ve got some exciting topics to cover and hope you’ll be able to attend one of them.

I’ve always told board members that the residents in their communities elected them to vote on the issues that come before them and not to refuse or decline to vote on those issues.   There are very few circumstances that justify a board member abstaining on an issue and most, if not all, involve situations where the board member would find himself in a conflict of interest if he voted on that particular matter.

The following are not valid reasons to abstain:

  • The board member feels he doesn’t know enough about the issue.   It’s that board member’s responsibility to do his homework about the issue before the meeting.
  • The board member doesn’t want to take an unpopular position or offend any of the residents.  Board members should not be elected because they are nice or will make the easy and popular decisions.   They are elected to properly and prudently make the sometimes difficult and unpopular decisions required  to effectively operate the community.
  • The member, who happens to be the chairman/president, feels he only has to vote if a tie needs to be broken.   In most communities, the chairman/president is elected by only the members of the board while each board member is elected by the entire membership.   I believe that the chairman/president is first and foremost a member of the board that was elected by the entire membership and has been given and accepted the same responsibility of every other board member–which is to vote on every issue that comes before the board, regardless of whether a tie vote needs to be broken.

What is the effect of an abstention?  

  • The 2008 amendments to Florida Statute Section 718.111(1)(b) provide that a member of the board of directors of a condominium association who abstains from voting "on any action taken on any corporate matter shall be presumed to have taken no position with regard to the action."   Apparently, that abstaining member’s vote cannot be counted either for or against the action.  
  • However, this provision is not found in Chapter 719.  Instead, cooperative associations are governed by Florida StatuteSection 719.104(8)(b) which provides that a director who is present at a board meeting is presumed to have assented to the action taken by the board unless  the director votes against such action or abstains because of an asserted conflct of interest.    It would seem that any abstention that is not based on a conflict of interest would be held to be a vote "for" the action taken by the board.
  • It appears that the provisions of either Florida Statute Sections 607.0824(4) or 617.0824(4) will  apply to homeowners associations, depending on whether that particular association is organized as a for profit (Chapter 607) or not for profit (Chapter 617) corporation.   Those sections provide that a director who is present at a meeting of the board or a committee of the board when corporate action is taken is held to have assented to that action unless he either objects at the beginning of the meeting or promptly upon his arrival to holding the meeting or transacting specified affairs at the meeting, or he votes against or abstains from the action taken.   

As you can see, the statutes are not quite identical and can cause some confusion.   My apologies to those of you that caught my earlier entry this morning which did not include the reference to Section 719.104(8)(b).   We’ve talked about this not quite logical provision at a number of our seminars and thanks to the followers of this blog that reminded me of the inconstency between Chapter 718 and Chapter 719.  

In any event, the best way to avoid the questions arising from abstentions is for a board member to vote on the issue unless a conflict of interest prevents him from doing so.