As Florida has developed over the years, so to have the number of communities with homeowner associations (HOA). For those who live in these communities, the rules and regulations with an elected board often have the feel of a small governmental system. Both homeowners and board members have frequent complaints regarding violations of Florida’s “Sunshine Laws.” These are laws that guarantee access to public records of the State’s governmental bodies.
But do Sunshine Laws apply to HOAs? Information on the internet is often mixed. There is a lot of confusion even among legal authors. What is clear is when you read the Statutes, the Sunshine Law does not actually apply to HOAs. And here’s why.
Florida Statue § 286.011
§ 286.011 Public meetings and records; public inspection; criminal and civil penalties.—
(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.
This Sunshine Law only applies to boards or commission of any state agency or of any agency or authority of any county, municipal corporation, or political subdivision. A HOA is a private corporation at best, and not a state or local governmental agency. An entirely separate chapter governs HOAs in our laws.’
Florida Statute Chapter § 720
How can information about a board’s business be kept public, so a secret meetings cannot take place? HOAs have to abide by Florida Statute § 720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.—
(2) BOARD MEETINGS.—
(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.
(b) Members have the right to attend all meetings of the board. The right to attend such meetings includes the right to speak at such meetings with reference to all designated items. The association may adopt written reasonable rules expanding the right of members to speak and governing the frequency, duration, and other manner of member statements, which rules must be consistent with this paragraph and may include a sign-up sheet for members wishing to speak. Notwithstanding any other law, meetings between the board or a committee and the association’s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors
Err On The Side Of Caution
The best rule of thumb is keep homeowner association meetings and communications open and transparent. It is better to err on the side of caution than to be caught in a recall because unhappy homeowners feel left out. A trap many unwary board members fall into is discussing HOA board or association business via email. If a quorum of the board is copied on an email (other than with an attorney for legal advice) those emails would be in violation of the Florida Statute 720.303.
A board, or newly elected board members, could meet with an attorney. The experienced attorneys of The Ticktin Law Group can help review and discuss how you can conduct business within the confines of Chapter 720. Contact us today by calling (561) 232-222 or completing the contact form here for a free consultation.