January 31, 2020

Condos: Is It Legal for One Board Member to Act on a Major Project without Bringing it to the Full Board

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By Richard D DeBoest

Q: I am a resident of an association that is governed under Florida Statutes 718 and we are about to have our annual election. We were given a limited proxy with only the board secretary with the rights as the proxy holder. If I read it correctly, the home owner has the right to designate his or her choice for a proxy holder. Our current president said he would throw out any proxy holder sheets that doesn't have the secretary listed as the proxy holder. Could you give me a clear understanding as my rights as an association owner? Thank you.

A: The Condominium Act (Chapter 718 Florida Statutes) does not expressly state who may be a proxy holder. Sometimes the association’s governing documents do require that a proxy holder must be another owner. I have never seen governing documents that mandate that the proxy holder may only be the secretary and I doubt such a provision would be legally enforceable. The State of Florida Division of Condominiums publishes a standard form proxy and it provides a space to write in the name of the proxy holder which may be someone other than an officer of the association. Florida Administrative Code Section 61B-23.002(5) provides that when members vote by proxy they must use the state published form or a form “substantially similar” to the state published form. Since the state published form proxy provides for writing in a name for the proxy holder it is my opinion that deleting this option would be a substantial change and therefore not allowed.

Q: Our association only posts minutes of any board meeting in a window-case in our clubhouse. Of course, any owners who are still at their winter homes have no access to these minutes. The association will not post them on our association website (on a password-secure owner’s webpage). Does the new condominium act cover how meeting minutes must be provided to unit owners?

A: Several years ago, Chapter 718 Florida Statutes governing condominiums was amended to require that condominiums with 150 or more units have a website. The statute lists certain documents that must be posted on the website. The statute does not list minutes of board meetings as one of the required documents that must be posted. So regardless of the size of your condominium there is no legal requirement that the board meeting minutes be posted on the website.

Q: Our HOA has been waiting to hear from our insurance company for coverage of roof damage since the hurricane in 2017. Without notice to the members, or all of the board members, the VP signed what is an assignment of benefits contract with a contractor who subs all of his work out. Is it legal for one board member to act on a major project, in a non-emergency situation, without bringing it to the full board and a members meeting?

A: In short, the answer is no. No single officer or director has the inherent legal authority to sign any contract for the association without the approval of the board. Any decision to authorize the signing of a contract must be made at a properly noticed board meeting. Unfortunately, the fact that the officer/directors signed the contract without authority will not likely allow the association to cancel the contract. Unless the vendor had actual knowledge that the officer was not authorized to sign the contract the vendor can rely on the apparent authority of the officer/director.

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