Breaking the law sounds like a fairly obvious action. Even speeders and jaywalkers are aware they’re committing a crime. But sometimes in the community associations, inaction or inconsistent action can constitute a legal violation that will put boards in very hot water. 

These are 5 of the most common ways Florida HOA and Condo board members might accidentally break the law, and how to avoid it, if this sounds like your board!

1. Not having the right number of members on a condominium’s board of directors

Who it applies to: Condo Associations [718.112 (2)], HOAs [617.0803(1)]

Florida law states that not-for-profit corporations (that’s community associations) must consist of a minimum of three or more trustees on the board of directors, with the number typically specified or fixed in accordance with your community association bylaws. For example, if your Bylaws set forth a fixed number of five individuals, your community association is required to have the number set forth in your bylaws (as long as the minimum is three). Put simply, your community association must never have fewer than three directors. 

Some bylaws do not set forth a fixed number at all. If your documents do not set forth a fixed number, Florida condominium law requires at least 5 board members for any community association with more than 5 units, and 3 board members for any community association with less than 5 units. 

If you’re struggling to fill the board, you may be inadvertently breaking the law!

The law is there to prevent a single person from having too much power on the board, resulting in a lack of checks and balances.

How to avoid breaking this law: Appoint a replacement or hold a special election.

The active members of the board can vote to temporarily appoint a replacement to fill an empty board seat until the next general election. Alternatively, you can hold a special election to fill those seats. (Bonus: make sure you follow proper election procedures, or your election may be voided!)

2. Not following board meeting procedures

Who it applies to:  Condo Associations [718.112 (2)] and HOAs [720.303 (2)]

Operationally speaking, board meetings are pretty straightforward. You and your fellow trustees gather together to oversee the business aspects of the community, gain insight into the thoughts of your membership, and (to everyone’s frustration) talk about the money.

What you might not know is that there are often very stringent rules about how board meetings are conducted, and violating those rules can get you into trouble. Here are just a few of the most important things to consider if you’re a board member (specifically in the state of Florida, but other states have similar legislation to consider):

  • Failing to provide proper notice of meetings

In the state of Florida, except in emergency situations, notices of all board meetings must be posted in a conspicuous place in the community at least 48 hours in advance. However, your documents may call for a longer notice period (with a minimum of 48 hours). So, be sure to check your governing documents. If so, you should follow the notice period listed in your governing documents!

Members must be made aware of meetings so they have the chance to attend and make their voices heard. Many communities have a bulletin board or other public areas where these notices can be posted. Those that don’t must mail or deliver notice of meetings to members either 7 days in advance (for HOAs) or 14 days in advance (for condos).

So a dinner amongst friends that turns into work when someone mentions finding a new lawn care provider who doesn’t step all over their begonias…is not a board meeting (as long as no decisions are made on behalf of the community). Of course, a group of friends and neighbors can meet and discuss items that affect their daily lives. However, if the group proceeds to make decisions for their community and turn that into action then it’s considered a board meeting that didn’t permit the membership time to attend, which presents the next problem:

  • Not allowing members to speak in or record meetings

Meeting attendance and speaking are guaranteed rights for community association residents, and operating in such a way that those rights may be denied can cause a lot of headaches for a board. In some states (or in some community governing documents), the right to record those meetings is also guaranteed.

How can you stay in line? Give residents access to all board meetings.

Be vigilant about meeting with other board members (and the topics you’re chatting about), and ensure ample notice and access accommodations are made for all planned board meetings. 

  • Voting on association matters outside of a board meeting 

While 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 e-mail. So, it’s important to be sure that board member decisions are made and recorded in the board meeting minutes during an official meeting of the board. 

3. Not enforcing community rules equally

Who it applies to: all community associations

While there aren’t many state laws concerning this topic, there are numerous court cases that set precedent prohibiting inconsistent enforcement of association rules and the repercussions for those who violate them. This can mean anything from improperly issuing warning letters to decisions about levying fines to approving or denying ARC requests to not uniformly applying delinquency standards. 

If someone feels that rules are being arbitrarily enforced, or enforced with preference, prejudice, or discrimination (collectively called selective enforcement), the board can get into a lot of trouble, and can even be sued for breaching Directors and Officers (D&O) responsibilities.

How can you avoid this? Don’t make exceptions.

Even if you know your neighbor took their trash in late because they had a late day at the office, you still have to issue them the appropriate repercussion. Being a member of the board means you have an obligation to act ethically and fairly for all of your homeowners, and looking at everything on a case-by-case basis can make that job challenging.

Of course, there can be exceptions to the rule, so long as the board makes an official waiver in writing with proper documentation to support it. You don’t want to be the HOA on the news that denies a playhouse to a child dying of cancer. Be willing to have open and thorough discussions in obvious cases when rules need to be circumvented. If you’re still unsure how to act, don’t hesitate to consult with a professional management company or association attorney.  Relying on the advice of experts is essential and necessary!

4. Not retaining documents required by the state 

Who it applies to: HOAs [720.303 (4)] and condo associations [718.111(12)]

Document retention is an important responsibility of any community association board. Many states and governing documents set forth very specific standards on which documents must be maintained, and for how long. For example, the state of Florida has a comprehensive list of documentation and official records that community associations are expected to maintain for a variety of years, sometimes both physically and digitally. 

This includes the obvious suspects, like governing documents, ongoing vendor contracts, and current board and committee rosters. It also includes documents such as board meeting minutes, work bids, and voting materials. Many boards can get tripped up by document mismanagement due to the sheer volume of files that need to be maintained. Additionally, condo communities that manage more than 150 units must make digital copies of documents available on a community website or mobile application. Please note, that if new bill HB 1021 is signed into law by the Governor it will decrease to 25 units for Condos, and if HB 1203 is signed it will require HOAs with 100 or more units

What’s the solution? Ask for help.

Partnering with a management company that has the tools and time to simplify document management and grant owner access is a great way to handle this burden. Organizational operations are time-consuming and require significant attention to detail that many board members cannot find the time for, and working with a community manager is a great way to handle those needs.

5. Improper collections attempts

Who it applies to: All community associations [FDCPA]

Unpaid assessments are a scourge on HOAs and condo associations across the country. Without those dollars, your community finances are hurting, so it’s easy to see why some board members want to take more drastic measures to collect unpaid dues. 

But if you’re not a collection agency (which 99.9% of the time, an HOA or condo association is not), your collection practices must comply with specific steps laid out by the FDCPA, and your community governing documents. Taking any action outside of those steps, operating out of order, harassing your neighbors, or calling them out in open board meetings can cause serious legal trouble for your community. 

Avoid this by following all relevant collection guidelines.

Issuing proper late notice warnings, late fees, interest, and associated fees is critical in the collection process. If the board reaches the stage in which a delinquent account needs further action taken, collaborating with your community attorney or a reputable HOA collection agency and letting those professionals handle further action is the best way to deal with community collections.

Minimize Your Risk

Managing a business is no simple task, and that is the responsibility of every community member who volunteers for their board of directors. If you’re worried your board members may be unintentionally breaking rules, or need assistance staying up-to-date on local laws, Trident Management can help. Click here to get in touch with one of our expert managers today.