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Condo Q&A: Can a Board Chat to Pre-Agree Before Public Meetings?

Also: Can a new board adopt an amended budget if the old board’s budget falls short in some areas? And can a condo association stop a unit owner from displaying an American flag inside their enclosed lanai?

STUART, Fla. – Question: Is it legal for the board of directors to make “sidewalk deals” by phone or Zoom platform –  the board of directors only – and reach agreements before meetings, such as to “line up the ducks?” For example: “If you vote for my motion then I will vote for yours.” So, at the meeting, they often, just say, “All in favor say aye.”

Answer: Your question raises several issues. First, if a quorum of the board is meeting on the telephone or via Zoom – or some other type of real-time communicative platform – and they discuss association business, that gathering is a board meeting and must be noticed and open to the owners to attend.

If there is less than a quorum of the board at the gathering, it is not a board meeting and no notice is required and the owners have no right to attend. However, the statutes provide that a quorum or more of the board may communicate with each other via email about association business but cannot vote via email.

So, it is legal for the board to communicate via email or text and discuss what may occur at the board meeting and elicit support for a particular position from other directors.

However, in my opinion, if this type of planning results in the board meeting lasting figuratively five minutes with no discussion about the issue or motion, then I think the directors are not fulfilling their role properly.

In other words, if every motion is a rubber-stamp vote with no substance, I think the directors should not do this. The owners are entitled to hear how and why certain decisions are being made since it is their money being spent.

Question: Can the board of directors borrow $50,000 to repair roofs without owners’ approval?

Answer: Yes, unless the governing documents expressly require owner approval to borrow money. Chapter 617 Florida Statutes is the not-for-profit corporation act. Almost all community associations are governed by Chapter 617. Chapter 617 provides that a not-for-profit corporation may borrow money and does not require member approval to do so.

So, you need to review your governing documents to determine if there is a requirement for the board to have owner approval to borrow money on behalf of the association. However, even if there is a requirement for owner approval to borrow money in the governing documents, when the geographic area of the community is under a state-declared emergency, the emergency powers statutes allow the board to borrow money without owner approval.

Question: The incoming HOA board members who will assume office April of 2021, are concerned that the 2021 budget that was approved in October of 2020 by the outgoing board members is not adequate to cover needed areas (i.e., legal fees for review and revision or rules) plus underfunding a number of line items in the operating budget.

There was also no increase in pooled reserves funding to accommodate the large projects scheduled for the next few years, such as painting and roofs. Is it possible for the new board to amend the budget or do we just have to live with it as it stands? Thank you.

Answer: Yes, generally the board can adopt an amended budget at any time using the same process that was used to adopt the original budget. You should review your governing documents to see if there are any special sections limiting this, but I would doubt it.

Question: Can a condominium association stop a unit owner from displaying an American flag from inside of an enclosed lanai?

Answer: No, absent exceptional circumstances. There are both state and federal laws protecting the rights of residents to fly the American flag. On the federal level, the “Freedom to Display the American Flag Act of 2005,” Public Law No: 109-243 (July 24, 2006), prohibits condominium associations, co-ops or residential homeowners’ associations from adopting or enforcing policies or agreements that would restrict or prevent a member of the association from displaying the flag of the U.S. on residential property within the association with respect to which the member has a separate ownership interest or right to exclusive possession or use. This would include limited common elements such as lanais.

The act does not mandate associations allow unlimited flag displays. The act provides that associations may adopt reasonable restrictions pertaining to time, place or manner of displaying the flag necessary to protect a substantial interest of the association.

The Florida Legislature has also addressed this issue, albeit it not to the same extent. Florida’s Condominium Act provides that any unit owner may display one portable, removable U.S. flag in a respectful way.

Florida’s Homeowner Association Act also provides that any homeowner may display one portable, removeable U.S. flag or the official flag of Florida in a respectful manner. Homeowners within a HOA also have the right to a free-standing flag pole no more than 20-feet-high on any portion of their real property and may raise one U.S. flag, not larger than 4.5-feet by 6-feet, and one additional flag of the State of Florida or the U.S. Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag.

The second flag must be no larger than the U.S. flag. The flagpole and display are subject to all building codes, zoning setbacks and other applicable governmental regulations, and all setback and locational criteria contained in the associations governing documents.

The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

© 2021 Journal Media Group. Richard DeBoest is partner of the Law Firm Goede, Adamczyk, DeBoest & Cross.