PAGE 5
BECKER & POLIAKOFF
COMMUNITY ASSOCIATION SUNSHINE LAW
PAGE 6
First, almost all community associations fall into one
of three categories: a condominium association
(governed by Chapter 718 of the Florida Statutes); a
cooperative association (governed by Chapter 719);
or a homeowners' association (governed by Chapter
720). The sunshine laws applicable to condominiums
and cooperatives discussed herein are essentially
identical, so when we mention the law for condos,
you can assume that it applies to co-ops as well. The
law for HOAs is similar to the condominium
counterpart, but slightly different in a few key
respects, as we will see.
Like any beginners course, we must of course start
with the definitions. All of the relevant laws define a
"meeting" of the association's board as any "gathering"
of a "quorum" of the board where association business
is "conducted."
The first relevant point is that a quorum must be
present. This is different than the sunshine laws for
public officials, where two or more public officials
cannot meet, even if this constitutes less than a
quorum. The association law is more liberal in this
regard and two directors can discuss association
business (except in the case of a three-member board).
One of the most frequently debated topics is what
constitutes the "conduct" of business. We have seen
many associations whose directors meet under the
auspices of "executive sessions", "planning meetings",
or "agenda development workshops", argue that a
quorum of the board could gather out of the sunshine
as long as no binding votes were being taken.
We are frequently asked the question, "What is the Sunshine Law?" Although Florida's
Sunshine in Government Act does not apply to community associations, the statutes
applicable to condominiums, cooperatives, and homeowners' associations each contain
their own "sunshine" requirements. We use the term "sunshine" as a shorthand phrase, and
not as a legal definition. We are pleased to offer you this guide, which sets forth the various
"sunshine" requirements applicable to community associations. We encourage you to refer
to Florida Statutes and current case law as the definitive source on these legal issues.
Community Association Sunshine Law
MEETING NOTICE REQUIREMENTS
Sunshine Laws for Committees
As we have learned by now, the sunshine laws for
condominium associations and homeowners'
associations contain many similarities, but also
some important differences.
For both condos and HOAs, there are certain
committees that must always operate in the
sunshine, which means they must post notice of
meetings, permit all association members to attend
meetings and keep minutes. Operating in the
sunshine also means the committee must permit other
unit owners to speak to designated agenda items.
The sunshine laws for homeowners' associations
apply to committees that can make final decisions
regarding the expenditure of association funds, or
committees that are vested with the power to
approve or disapprove architectural decisions with
respect to parcels in the community. The sunshine
laws for condominiums apply to committees that
are empowered to take final action on behalf of the
board, or committees that make recommendations
to the board regarding the association budget. A
committee to which sunshine laws apply is
commonly referred to as a "statutory committee."
Regardless of what the bylaws say, the sunshine
requirements always apply to those committees
that are required to have open, noticed meetings.
For all other committees, there is a significant
difference between condominium law and HOA law.
For homeowners' associations, committees that are
not required by statute to have open, noticed
meetings are not subject to sunshine requirements.
Conversely, the condominium statute provides that
all committees are subject to sunshine requirements
unless the bylaws for the association specifically
exempt committees from the sunshine laws. In our
experience, very few older bylaws for condominium
associations exempt committees, and in such cases,
the sunshine rules apply to all condominium
association committees, not just statutory committees.
One final point to note is that members of
condominium associations may tape record or
videotape meetings of statutory committees. They
may also tape record or videotape meetings of non-
statutory committees unless the Bylaws contain the
above-noted exemption. HOA members do not,
however, have a right to tape record or videotape any
committee meetings, even those meetings of
committees which must operate in the sunshine.
Exceptions to the Sunshine Law
Every rule has its exceptions. In this section, we will
look at the exceptions to the sunshine laws for
condominium and homeowners' associations.
As noted previously, there are no exceptions to the
sunshine law for "executive sessions", "planning
sessions", "fact-finding missions", or for any other
gathering of a quorum of the board (or, where
applicable, committees) for the purpose of conducting
association business. Remember, votes need not be
taken for association business to be conducted.
However, the laws for HOAs and condominiums
provide an exemption regarding legal meetings,
found in Section 718.112(2)(c) (3) of the
Condominium Act and Section 720.303(2)(b) of the
HOA Act. Specifically, there is an exception to the
requirement that board meetings and committee
meetings be open to the owners when there are
meetings between the board or a committee and the
association's attorney with respect to "proposed or
pending litigation", if the meeting is held for the
purpose of "seeking or rendering legal advice."
Therefore, association boards (or committees) may
hold closed meetings if they are meeting with legal
counsel to discuss proposed or pending litigation. The
rationale for the exemption is obvious. For example,
if an association is involved in litigation with a
member, it would be unfair to the association to
permit the member to attend meetings with the
association's attorney to discuss the strengths and
weaknesses of the case, strategic issues, and the like.
Second, the HOA and condominium laws also
contain another exemption, which is found at Section
720.303 (2)(b) of the HOA statute and Section
718.112(2)(c)3 of the Condominium Act. This law
provides that meetings between a quorum of the
board may be closed when "personnel matters" are
under discussion. Presumably, "personnel matters"
would be limited to the discussion of specific issues
pertaining to employees of the association.
Boards (and committees) should also keep minutes of
attorney-client privileged meetings, particularly if a
vote is taken at the meeting. The minutes should
never reflect attorney-client privileged information,
but only who attended the meeting and proper
documentation of any vote that was taken.
Type of Meeting Condo/Co-op HOA
Board Meeting 48 hours posted with agenda 48 hours posted (or pursuant to bylaws)
Budget 14 days mailed (along with a copy of Pursuant to documents
Meeting the proposed budget) and posted, unless
documents require a longer time period
Board Meeting 14 days mailed and posted - Notice must 14 days mailed and posted - Notice must
To Levy An also include a statement that assessments will be also include a statement that assessments
Assessment considered and provide the nature, estimated cost, will be considered and the nature of
and description of the purposes for the assessments assessments
Board Meeting 14 days mailed and posted Not Applicable (unless required
To Establish by documents)
Insurance Deductible
Board Meeting 14 days mailed and posted 14 days mailed and posted
To Adopt Rules
Regarding Unit
or Parcel Use
Annual 60 days for first notice; 14 days for second 14 days mailed, delivered or
Meeting notice, mailed, delivered or electronically electronically transmitted
transmitted and posted (unless bylaws provide otherwise)
Member Pursuant to bylaws (usually at least 14 days 14 days mailed, delivered or
Meeting (other than mailed, delivered or electronically electronically transmitted (unless
Annual Meeting) transmitted) bylaws provide otherwise)
Committee Committees that take final action on behalf of Must be posted 48 hours in
Meeting the board or make recommendations to the advance when a final decision
board regarding the association budget must will be made regarding the
notice their meetings 48 hours in advance, and expenditure of association funds
the meetings must be open to unit owners. and to meetings of any committee
Committees that DO NOT take final action vested with the power to approve
on behalf of the board or make or disapprove architectural
recommendations to the board regarding decisions with respect to a
the association budget must notice their specific parcel of residential
meetings 48 hours in advance, and the property owned by a member of
meeting must be open to the unit owners the community.
UNLESS the bylaws provide otherwise.
Meetings with Must be noticed 48 hours in advance, but Must be noticed 48 hours in advance (or
the Association are not open to unit owners when the pursuant to the documents) but are not
Attorney Association’s attorney is present and the open to owners when the Association’s
(Board or meeting is held for the purpose of seeking attorney is present and the meeting is
Committee) or rendering legal advice with respect to regarding proposed or pending litigation
proposed or pending litigation. where the contents of the discussion
would otherwise be governed by the
attorney-client privilege.
Meetings Must be noticed 48 hours in advance, but Must be noticed 48 hours in advance (or
Regarding are not required to be open to unit owners pursuant to the documents), but are not
Personnel Matters when the meeting is held for the purpose required to be open to owners when the
(Board only) of discussing personnel matters meeting is held for the purpose of
discussing personnel matters
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Definitions
of the board, although members may only speak
to designated items, unless the HOA adopts rules
expanding this right. Similarly, condominium
unit owners have the right to speak at meetings
of the board of directors with respect to items
that have
been placed on the agenda for the
meeting. In both the HOA and condominium
context, this does not mean that every unit owner
is entitled to debate motions, but it does mean
that the owners are entitled to be heard regarding
matters the board intends to consider at the
meeting. Therefore, unit owner statements should
be taken either at the beginning of the meeting,
or at a set time in connection with a specific
agenda item. Allowing owners to speak after the
board has voted does not fulfill the requirement
allowing participation by members.
• The Board's Right To Establish Meeting Rules.
Both condominium and HOA laws permit a
board to establish reasonable regulations
regarding the procedures for speaking at
meetings of the board. For example, we think it is
reasonable to require those who wish to speak to
turn in a form at the beginning of the meeting,
indicating which agenda item or items they
would like to address. We also believe that an
association may impose reasonable time limits.
Three minutes per topic, per speaker, is typically
considered a reasonable time limit.
Keeping Minutes of Board Meetings
The purpose of minutes is to record what was done,
not what was said. Where detailed findings of facts
are appropriate for inclusion with minutes, they
should be recited in a separate resolution of the
board. If detailed reports were the basis for
decisions, they can be attached as an appendix to
the minutes.
A typical set of board minutes should reflect:
• The date, time, and place at which the meeting
was called to order.
• The presiding officer.
• The establishment of a quorum, with attendees
listed by name.
• Proof of proper notice for the meeting.
• Disposal of unapproved minutes from previous
board meetings.
• A summary of reports given to the board and a
statement by whom the reports were given (a
one or two sentence summary is typically
sufficient).
• Unfinished business.
• New business.
• Adjournment.
Whenever an item of board business is put to a
vote, the person making the motion for approval of
the item should be identified in the minutes, as
should the name of the person who seconds the
motion. The exact wording of the motion should
also be included in the minutes. The points raised
in debate are typically not included in the minutes.
Both the Condominium and HOA Acts require the
vote of every director to be recorded in the minutes.
Accordingly, if five directors vote in favor of a
motion and two are opposed, the minutes should
reflect the names of the five who voted for the item,
as well as the names of the two who voted against.
Most boards operate under Robert's Rules of Order,
either through mandate from the bylaws, or simply
because most people are familiar with them as a
standard reference for parliamentary procedure.
Under Robert's Rules, the chair of a meeting
typically does not vote, except to break ties. This is
not the case for associations. Typically, the chair of
board meetings is the association's president and,
in most communities, he or she is also a member of
the board. As a member of the board, the president
is entitled to vote on issues before the board.
Directors are obliged by law and concepts of
fiduciary duty to abstain from voting when the
subject matter of the vote presents a conflict of
interest. For example, if a board member owned a
unit and approval of a lease application for the unit
was on the agenda, that director should abstain
from voting on that item due to a conflict of
interest. If a board member abstains, he or she is
considered to have taken no position on the matter
at hand. A director's abstention should always be
noted in the minutes.
Both the laws for condominiums and homeowners'
associations require minutes of board meetings to
be kept for seven years, as part of the official records
of the association.
broadcast on closed-circuit cable television not less
than 14 days before the meeting.
In general, both the condominium and homeowners'
association laws require that notice of most board
meetings be posted in the community at least 48
hours before the meeting. Both laws also require
that if assessments are to be considered, or if rules
regarding use of the units or parcels (as opposed to
common element or common area rules) are to be
considered, notice must be mailed, delivered or
electronically transmitted and posted conspicuously
on the property at least 14 days before the meeting.
Additionally, certain rules must be followed in both
condos and HOAs when television notice is used in
lieu of posted notice.
The location requirement for posted notices often
causes some confusion and potential legal
complications. The Florida condominium law
requires the board to adopt a rule stating where
official notice may be posted. The board may specify
more than one official location, but there must at
least be one location in a conspicuous place on the
condominium property or association property
where the notices must be posted. The notices can
also be posted in other locations. If the association
does not have a location where notices can be
physically posted, notices must be mailed to the
owner of each unit at least fourteen days before a
board meeting.
For homeowners' associations, the law simply states
that the notices must be posted "in a conspicuous
place" in the community. While there is no
requirement that the HOA board adopt a posting
location, it is a good idea to do so. Also, in lieu of
posting notice of regular or special board meetings,
the HOA can mail out the notices seven days in
advance, which is slightly more liberal than the
condominium notice requirement.
Owners' Rights at Board Meetings
One common thread in our discussion of
community association sunshine laws is the fact that
the law for condominium associations is very
similar to the law for homeowners' associations, but
with subtle and occasionally significant differences
between the two.
First, let us look at the condominium law. Section
718.112(2)(c), Florida Statutes, provides that meetings
of the board are open to all unit owners, who may
tape record or videotape such meetings. The law
states that unit owners have the right to speak at
such meetings on all designated agenda items. A
condominium association may adopt written
reasonable rules governing the frequency, duration,
and manner of unit owner statements.
Section 720.303(2)(b) provides that members of a
homeowners' association have the right to attend
meetings of the board and the right to speak at such
meetings with reference to all designated items.
Additionally, Section 720.306(10) provides that
members have the right to tape record or videotape
such meetings. The irony is that the HOA statute
does not require that there be any designated items,
as there is no requirement for an agenda. The HOA
may also adopt reasonable rules expanding the right
of members to speak and governing the taping of the
meetings and the frequency, duration, and other
manner of member statements, which rules must be
consistent with Section 720.303(2)(b). For example,
the rules adopted by the HOA may require the use
of a sign-up sheet for members wishing to speak.
For both HOAs and Condominiums, if 20 percent of
the total voting interests petition the board to
address an item of business, the board at its next
regular board meeting or at a special meeting of the
board, but not later than 60 days after the receipt of
the petition, shall place the petitioned item on an
agenda. Other than addressing the petitioned item
at the meeting, the board is not obligated to take any
other action requested by the petition.
The following are the highlights of members'
(homeowners') rights for both types of associations:
• Requiring The Board To Address An Issue. For
condominium associations and HOAs, if 20
percent of the total voting interests petition the
board to address an item of business, the board at
its next regular board meeting or at a special
meeting of the board, but not later than 60 days
after the receipt of the petition, shall place the
item on the agenda. There is no requirement in the
law that the board act favorably on the requested
item, only that it be appropriately considered.
• Right To Speak At Board Meetings. For HOAs, the
statute confers a general right to speak at meetings
However, this is not what the law says, and is
certainly not what it means. Although we are not
aware of any reported appellate court cases in the
association context, there are a number of cases in
the public arena that have held that any interaction
contributing to the development of ideas constitutes
a "meeting", without regard to whether or not a
formal vote has been taken.
Otherwise, association boards could make decisions
in "executive session", with the "public meeting" being
simply a rubber-stamp event. While many associations
legitimately desire to avoid certain topics in open
meetings, it is simply the price that is paid for the
owners' right to remain informed. To do otherwise
defeats the statutory requirements that board meetings
be open and that the owners have the right to participate.
Let's now look at the definition of a "gathering" of a
quorum of the board. If you have a five-member
board, clearly three of them sitting in the same room
constitutes a quorum. Those three are certainly free to
get together for social purposes, or other reasons, but
once association business is discussed, the gathering
is technically a meeting of the board. Board decisions
are made at board meetings.
The Do's and Don'ts of Noticing Meetings
As with meetings of governmental bodies, the right to
attend and speak at meetings is of little benefit to the
governed if they do not know when or where the
meetings are going to be held. While governmental
entities normally advertise meetings through
newspapers, association advertisement is generally
handled through physical posting of the notice.
Section 718.112(2)(c) of the Florida Condominium
Act provides that notice of all board meetings must
specifically identify agenda items, and must be
posted conspicuously on the condominium property
at least 48 continuous hours before the meeting,
except in an emergency. Further, written notice of
any board meeting at which non-emergency special
assessments, amendments to rules regarding unit use,
the association budget or insurance deductibles will
be considered must be mailed, delivered, or
electronically transmitted to the unit owners, and
posted conspicuously on the condominium property
not less than 14 days prior to the meeting. Some
bylaws may even prescribe more stringent notice
requirements for these meetings and some notices, like
those for meetings at which assessments will be
considered, have additional notice requirements.
No regular or special assessment may be levied at a
condominium association board meeting unless the
notice of the meeting includes a statement that
assessments will be considered and the nature,
estimated costs, and description of the purposes for
such assessments. If there is no condominium
property upon which notices can be posted, notices
of all board meetings shall be mailed, delivered, or
electronically transmitted at least 14 days before the
meeting to the owner of each unit. In lieu of or in
addition to the physical posting of notice of any
meeting of the board, the association may, by
reasonable rule, adopt a procedure for conspicuously
posting and repeatedly broadcasting the notice and
the agenda on a closed-circuit cable television system
serving the condominium association. If broadcast
notice is used in lieu of a notice posted physically on
the condominium property, the notice and agenda
must be broadcast at least four (4) times every broadcast
hour of each day that a posted notice is required.
Section 720.303(2)(c), Florida Statutes, applicable to
HOAs, likewise provides that notices of all board
meetings must be posted in a conspicuous place in
the community at least 48 hours in advance of a
meeting, except in an emergency. Unlike the law for
condominiums, there is no requirement that an
agenda be included in the notice. As an alternative to
posting, notice of board meetings can be mailed or
delivered to each member at least 7 days before the
meeting. For communities with more than 100
members, the bylaws may provide for a reasonable
alternative to posting or mailing of notice for each
board meeting, including publication of notice,
provision of a schedule of board meetings, or the
conspicuous posting and repeated broadcasting of
the notice on a closed-circuit cable television system
serving the homeowners' association.
No assessments may be levied at a homeowners'
association board meeting unless the notice of
meeting includes a statement that assessments will be
considered and the nature of the assessments.
Written notice of any meeting at which special
assessments will be considered or at which
amendments to rules regarding parcel use will be
considered must be mailed, delivered, or
electronically transmitted to the members and parcel
owners and posted conspicuously on the property or
PAGE 2
BECKER & POLIAKOFF
COMMUNITY ASSOCIATION SUNSHINE LAW
PAGE 4
of the board, although members may only speak
to designated items, unless the HOA adopts rules
expanding this right. Similarly, condominium
unit owners have the right to speak at meetings
of the board of directors with respect to items
that have
been placed on the agenda for the
meeting. In both the HOA and condominium
context, this does not mean that every unit owner
is entitled to debate motions, but it does mean
that the owners are entitled to be heard regarding
matters the board intends to consider at the
meeting. Therefore, unit owner statements should
be taken either at the beginning of the meeting,
or at a set time in connection with a specific
agenda item. Allowing owners to speak after the
board has voted does not fulfill the requirement
allowing participation by members.
• The Board's Right To Establish Meeting Rules.
Both condominium and HOA laws permit a
board to establish reasonable regulations
regarding the procedures for speaking at
meetings of the board. For example, we think it is
reasonable to require those who wish to speak to
turn in a form at the beginning of the meeting,
indicating which agenda item or items they
would like to address. We also believe that an
association may impose reasonable time limits.
Three minutes per topic, per speaker, is typically
considered a reasonable time limit.
Keeping Minutes of Board Meetings
The purpose of minutes is to record what was done,
not what was said. Where detailed findings of facts
are appropriate for inclusion with minutes, they
should be recited in a separate resolution of the
board. If detailed reports were the basis for
decisions, they can be attached as an appendix to
the minutes.
A typical set of board minutes should reflect:
• The date, time, and place at which the meeting
was called to order.
• The presiding officer.
• The establishment of a quorum, with attendees
listed by name.
• Proof of proper notice for the meeting.
• Disposal of unapproved minutes from previous
board meetings.
• A summary of reports given to the board and a
statement by whom the reports were given (a
one or two sentence summary is typically
sufficient).
• Unfinished business.
• New business.
• Adjournment.
Whenever an item of board business is put to a
vote, the person making the motion for approval of
the item should be identified in the minutes, as
should the name of the person who seconds the
motion. The exact wording of the motion should
also be included in the minutes. The points raised
in debate are typically not included in the minutes.
Both the Condominium and HOA Acts require the
vote of every director to be recorded in the minutes.
Accordingly, if five directors vote in favor of a
motion and two are opposed, the minutes should
reflect the names of the five who voted for the item,
as well as the names of the two who voted against.
Most boards operate under Robert's Rules of Order,
either through mandate from the bylaws, or simply
because most people are familiar with them as a
standard reference for parliamentary procedure.
Under Robert's Rules, the chair of a meeting
typically does not vote, except to break ties. This is
not the case for associations. Typically, the chair of
board meetings is the association's president and,
in most communities, he or she is also a member of
the board. As a member of the board, the president
is entitled to vote on issues before the board.
Directors are obliged by law and concepts of
fiduciary duty to abstain from voting when the
subject matter of the vote presents a conflict of
interest. For example, if a board member owned a
unit and approval of a lease application for the unit
was on the agenda, that director should abstain
from voting on that item due to a conflict of
interest. If a board member abstains, he or she is
considered to have taken no position on the matter
at hand. A director's abstention should always be
noted in the minutes.
Both the laws for condominiums and homeowners'
associations require minutes of board meetings to
be kept for seven years, as part of the official records
of the association.
broadcast on closed-circuit cable television not less
than 14 days before the meeting.
In general, both the condominium and homeowners'
association laws require that notice of most board
meetings be posted in the community at least 48
hours before the meeting. Both laws also require
that if assessments are to be considered, or if rules
regarding use of the units or parcels (as opposed to
common element or common area rules) are to be
considered, notice must be mailed, delivered or
electronically transmitted and posted conspicuously
on the property at least 14 days before the meeting.
Additionally, certain rules must be followed in both
condos and HOAs when television notice is used in
lieu of posted notice.
The location requirement for posted notices often
causes some confusion and potential legal
complications. The Florida condominium law
requires the board to adopt a rule stating where
official notice may be posted. The board may specify
more than one official location, but there must at
least be one location in a conspicuous place on the
condominium property or association property
where the notices must be posted. The notices can
also be posted in other locations. If the association
does not have a location where notices can be
physically posted, notices must be mailed to the
owner of each unit at least fourteen days before a
board meeting.
For homeowners' associations, the law simply states
that the notices must be posted "in a conspicuous
place" in the community. While there is no
requirement that the HOA board adopt a posting
location, it is a good idea to do so. Also, in lieu of
posting notice of regular or special board meetings,
the HOA can mail out the notices seven days in
advance, which is slightly more liberal than the
condominium notice requirement.
Owners' Rights at Board Meetings
One common thread in our discussion of
community association sunshine laws is the fact that
the law for condominium associations is very
similar to the law for homeowners' associations, but
with subtle and occasionally significant differences
between the two.
First, let us look at the condominium law. Section
718.112(2)(c), Florida Statutes, provides that meetings
of the board are open to all unit owners, who may
tape record or videotape such meetings. The law
states that unit owners have the right to speak at
such meetings on all designated agenda items. A
condominium association may adopt written
reasonable rules governing the frequency, duration,
and manner of unit owner statements.
Section 720.303(2)(b) provides that members of a
homeowners' association have the right to attend
meetings of the board and the right to speak at such
meetings with reference to all designated items.
Additionally, Section 720.306(10) provides that
members have the right to tape record or videotape
such meetings. The irony is that the HOA statute
does not require that there be any designated items,
as there is no requirement for an agenda. The HOA
may also adopt reasonable rules expanding the right
of members to speak and governing the taping of the
meetings and the frequency, duration, and other
manner of member statements, which rules must be
consistent with Section 720.303(2)(b). For example,
the rules adopted by the HOA may require the use
of a sign-up sheet for members wishing to speak.
For both HOAs and Condominiums, if 20 percent of
the total voting interests petition the board to
address an item of business, the board at its next
regular board meeting or at a special meeting of the
board, but not later than 60 days after the receipt of
the petition, shall place the petitioned item on an
agenda. Other than addressing the petitioned item
at the meeting, the board is not obligated to take any
other action requested by the petition.
The following are the highlights of members'
(homeowners') rights for both types of associations:
• Requiring The Board To Address An Issue. For
condominium associations and HOAs, if 20
percent of the total voting interests petition the
board to address an item of business, the board at
its next regular board meeting or at a special
meeting of the board, but not later than 60 days
after the receipt of the petition, shall place the
item on the agenda. There is no requirement in the
law that the board act favorably on the requested
item, only that it be appropriately considered.
• Right To Speak At Board Meetings. For HOAs, the
statute confers a general right to speak at meetings
However, this is not what the law says, and is
certainly not what it means. Although we are not
aware of any reported appellate court cases in the
association context, there are a number of cases in
the public arena that have held that any interaction
contributing to the development of ideas constitutes
a "meeting", without regard to whether or not a
formal vote has been taken.
Otherwise, association boards could make decisions
in "executive session", with the "public meeting" being
simply a rubber-stamp event. While many associations
legitimately desire to avoid certain topics in open
meetings, it is simply the price that is paid for the
owners' right to remain informed. To do otherwise
defeats the statutory requirements that board meetings
be open and that the owners have the right to participate.
Let's now look at the definition of a "gathering" of a
quorum of the board. If you have a five-member
board, clearly three of them sitting in the same room
constitutes a quorum. Those three are certainly free to
get together for social purposes, or other reasons, but
once association business is discussed, the gathering
is technically a meeting of the board. Board decisions
are made at board meetings.
The Do's and Don'ts of Noticing Meetings
As with meetings of governmental bodies, the right to
attend and speak at meetings is of little benefit to the
governed if they do not know when or where the
meetings are going to be held. While governmental
entities normally advertise meetings through
newspapers, association advertisement is generally
handled through physical posting of the notice.
Section 718.112(2)(c) of the Florida Condominium
Act provides that notice of all board meetings must
specifically identify agenda items, and must be
posted conspicuously on the condominium property
at least 48 continuous hours before the meeting,
except in an emergency. Further, written notice of
any board meeting at which non-emergency special
assessments, amendments to rules regarding unit use,
the association budget or insurance deductibles will
be considered must be mailed, delivered, or
electronically transmitted to the unit owners, and
posted conspicuously on the condominium property
not less than 14 days prior to the meeting. Some
bylaws may even prescribe more stringent notice
requirements for these meetings and some notices, like
those for meetings at which assessments will be
considered, have additional notice requirements.
No regular or special assessment may be levied at a
condominium association board meeting unless the
notice of the meeting includes a statement that
assessments will be considered and the nature,
estimated costs, and description of the purposes for
such assessments. If there is no condominium
property upon which notices can be posted, notices
of all board meetings shall be mailed, delivered, or
electronically transmitted at least 14 days before the
meeting to the owner of each unit. In lieu of or in
addition to the physical posting of notice of any
meeting of the board, the association may, by
reasonable rule, adopt a procedure for conspicuously
posting and repeatedly broadcasting the notice and
the agenda on a closed-circuit cable television system
serving the condominium association. If broadcast
notice is used in lieu of a notice posted physically on
the condominium property, the notice and agenda
must be broadcast at least four (4) times every broadcast
hour of each day that a posted notice is required.
Section 720.303(2)(c), Florida Statutes, applicable to
HOAs, likewise provides that notices of all board
meetings must be posted in a conspicuous place in
the community at least 48 hours in advance of a
meeting, except in an emergency. Unlike the law for
condominiums, there is no requirement that an
agenda be included in the notice. As an alternative to
posting, notice of board meetings can be mailed or
delivered to each member at least 7 days before the
meeting. For communities with more than 100
members, the bylaws may provide for a reasonable
alternative to posting or mailing of notice for each
board meeting, including publication of notice,
provision of a schedule of board meetings, or the
conspicuous posting and repeated broadcasting of
the notice on a closed-circuit cable television system
serving the homeowners' association.
No assessments may be levied at a homeowners'
association board meeting unless the notice of
meeting includes a statement that assessments will be
considered and the nature of the assessments.
Written notice of any meeting at which special
assessments will be considered or at which
amendments to rules regarding parcel use will be
considered must be mailed, delivered, or
electronically transmitted to the members and parcel
owners and posted conspicuously on the property or
PAGE 2
BECKER & POLIAKOFF
COMMUNITY ASSOCIATION SUNSHINE LAW
PAGE 4
of the board, although members may only speak
to designated items, unless the HOA adopts rules
expanding this right. Similarly, condominium
unit owners have the right to speak at meetings
of the board of directors with respect to items
that have
been placed on the agenda for the
meeting. In both the HOA and condominium
context, this does not mean that every unit owner
is entitled to debate motions, but it does mean
that the owners are entitled to be heard regarding
matters the board intends to consider at the
meeting. Therefore, unit owner statements should
be taken either at the beginning of the meeting,
or at a set time in connection with a specific
agenda item. Allowing owners to speak after the
board has voted does not fulfill the requirement
allowing participation by members.
• The Board's Right To Establish Meeting Rules.
Both condominium and HOA laws permit a
board to establish reasonable regulations
regarding the procedures for speaking at
meetings of the board. For example, we think it is
reasonable to require those who wish to speak to
turn in a form at the beginning of the meeting,
indicating which agenda item or items they
would like to address. We also believe that an
association may impose reasonable time limits.
Three minutes per topic, per speaker, is typically
considered a reasonable time limit.
Keeping Minutes of Board Meetings
The purpose of minutes is to record what was done,
not what was said. Where detailed findings of facts
are appropriate for inclusion with minutes, they
should be recited in a separate resolution of the
board. If detailed reports were the basis for
decisions, they can be attached as an appendix to
the minutes.
A typical set of board minutes should reflect:
• The date, time, and place at which the meeting
was called to order.
• The presiding officer.
• The establishment of a quorum, with attendees
listed by name.
• Proof of proper notice for the meeting.
• Disposal of unapproved minutes from previous
board meetings.
• A summary of reports given to the board and a
statement by whom the reports were given (a
one or two sentence summary is typically
sufficient).
• Unfinished business.
• New business.
• Adjournment.
Whenever an item of board business is put to a
vote, the person making the motion for approval of
the item should be identified in the minutes, as
should the name of the person who seconds the
motion. The exact wording of the motion should
also be included in the minutes. The points raised
in debate are typically not included in the minutes.
Both the Condominium and HOA Acts require the
vote of every director to be recorded in the minutes.
Accordingly, if five directors vote in favor of a
motion and two are opposed, the minutes should
reflect the names of the five who voted for the item,
as well as the names of the two who voted against.
Most boards operate under Robert's Rules of Order,
either through mandate from the bylaws, or simply
because most people are familiar with them as a
standard reference for parliamentary procedure.
Under Robert's Rules, the chair of a meeting
typically does not vote, except to break ties. This is
not the case for associations. Typically, the chair of
board meetings is the association's president and,
in most communities, he or she is also a member of
the board. As a member of the board, the president
is entitled to vote on issues before the board.
Directors are obliged by law and concepts of
fiduciary duty to abstain from voting when the
subject matter of the vote presents a conflict of
interest. For example, if a board member owned a
unit and approval of a lease application for the unit
was on the agenda, that director should abstain
from voting on that item due to a conflict of
interest. If a board member abstains, he or she is
considered to have taken no position on the matter
at hand. A director's abstention should always be
noted in the minutes.
Both the laws for condominiums and homeowners'
associations require minutes of board meetings to
be kept for seven years, as part of the official records
of the association.
broadcast on closed-circuit cable television not less
than 14 days before the meeting.
In general, both the condominium and homeowners'
association laws require that notice of most board
meetings be posted in the community at least 48
hours before the meeting. Both laws also require
that if assessments are to be considered, or if rules
regarding use of the units or parcels (as opposed to
common element or common area rules) are to be
considered, notice must be mailed, delivered or
electronically transmitted and posted conspicuously
on the property at least 14 days before the meeting.
Additionally, certain rules must be followed in both
condos and HOAs when television notice is used in
lieu of posted notice.
The location requirement for posted notices often
causes some confusion and potential legal
complications. The Florida condominium law
requires the board to adopt a rule stating where
official notice may be posted. The board may specify
more than one official location, but there must at
least be one location in a conspicuous place on the
condominium property or association property
where the notices must be posted. The notices can
also be posted in other locations. If the association
does not have a location where notices can be
physically posted, notices must be mailed to the
owner of each unit at least fourteen days before a
board meeting.
For homeowners' associations, the law simply states
that the notices must be posted "in a conspicuous
place" in the community. While there is no
requirement that the HOA board adopt a posting
location, it is a good idea to do so. Also, in lieu of
posting notice of regular or special board meetings,
the HOA can mail out the notices seven days in
advance, which is slightly more liberal than the
condominium notice requirement.
Owners' Rights at Board Meetings
One common thread in our discussion of
community association sunshine laws is the fact that
the law for condominium associations is very
similar to the law for homeowners' associations, but
with subtle and occasionally significant differences
between the two.
First, let us look at the condominium law. Section
718.112(2)(c), Florida Statutes, provides that meetings
of the board are open to all unit owners, who may
tape record or videotape such meetings. The law
states that unit owners have the right to speak at
such meetings on all designated agenda items. A
condominium association may adopt written
reasonable rules governing the frequency, duration,
and manner of unit owner statements.
Section 720.303(2)(b) provides that members of a
homeowners' association have the right to attend
meetings of the board and the right to speak at such
meetings with reference to all designated items.
Additionally, Section 720.306(10) provides that
members have the right to tape record or videotape
such meetings. The irony is that the HOA statute
does not require that there be any designated items,
as there is no requirement for an agenda. The HOA
may also adopt reasonable rules expanding the right
of members to speak and governing the taping of the
meetings and the frequency, duration, and other
manner of member statements, which rules must be
consistent with Section 720.303(2)(b). For example,
the rules adopted by the HOA may require the use
of a sign-up sheet for members wishing to speak.
For both HOAs and Condominiums, if 20 percent of
the total voting interests petition the board to
address an item of business, the board at its next
regular board meeting or at a special meeting of the
board, but not later than 60 days after the receipt of
the petition, shall place the petitioned item on an
agenda. Other than addressing the petitioned item
at the meeting, the board is not obligated to take any
other action requested by the petition.
The following are the highlights of members'
(homeowners') rights for both types of associations:
• Requiring The Board To Address An Issue. For
condominium associations and HOAs, if 20
percent of the total voting interests petition the
board to address an item of business, the board at
its next regular board meeting or at a special
meeting of the board, but not later than 60 days
after the receipt of the petition, shall place the
item on the agenda. There is no requirement in the
law that the board act favorably on the requested
item, only that it be appropriately considered.
• Right To Speak At Board Meetings. For HOAs, the
statute confers a general right to speak at meetings
However, this is not what the law says, and is
certainly not what it means. Although we are not
aware of any reported appellate court cases in the
association context, there are a number of cases in
the public arena that have held that any interaction
contributing to the development of ideas constitutes
a "meeting", without regard to whether or not a
formal vote has been taken.
Otherwise, association boards could make decisions
in "executive session", with the "public meeting" being
simply a rubber-stamp event. While many associations
legitimately desire to avoid certain topics in open
meetings, it is simply the price that is paid for the
owners' right to remain informed. To do otherwise
defeats the statutory requirements that board meetings
be open and that the owners have the right to participate.
Let's now look at the definition of a "gathering" of a
quorum of the board. If you have a five-member
board, clearly three of them sitting in the same room
constitutes a quorum. Those three are certainly free to
get together for social purposes, or other reasons, but
once association business is discussed, the gathering
is technically a meeting of the board. Board decisions
are made at board meetings.
The Do's and Don'ts of Noticing Meetings
As with meetings of governmental bodies, the right to
attend and speak at meetings is of little benefit to the
governed if they do not know when or where the
meetings are going to be held. While governmental
entities normally advertise meetings through
newspapers, association advertisement is generally
handled through physical posting of the notice.
Section 718.112(2)(c) of the Florida Condominium
Act provides that notice of all board meetings must
specifically identify agenda items, and must be
posted conspicuously on the condominium property
at least 48 continuous hours before the meeting,
except in an emergency. Further, written notice of
any board meeting at which non-emergency special
assessments, amendments to rules regarding unit use,
the association budget or insurance deductibles will
be considered must be mailed, delivered, or
electronically transmitted to the unit owners, and
posted conspicuously on the condominium property
not less than 14 days prior to the meeting. Some
bylaws may even prescribe more stringent notice
requirements for these meetings and some notices, like
those for meetings at which assessments will be
considered, have additional notice requirements.
No regular or special assessment may be levied at a
condominium association board meeting unless the
notice of the meeting includes a statement that
assessments will be considered and the nature,
estimated costs, and description of the purposes for
such assessments. If there is no condominium
property upon which notices can be posted, notices
of all board meetings shall be mailed, delivered, or
electronically transmitted at least 14 days before the
meeting to the owner of each unit. In lieu of or in
addition to the physical posting of notice of any
meeting of the board, the association may, by
reasonable rule, adopt a procedure for conspicuously
posting and repeatedly broadcasting the notice and
the agenda on a closed-circuit cable television system
serving the condominium association. If broadcast
notice is used in lieu of a notice posted physically on
the condominium property, the notice and agenda
must be broadcast at least four (4) times every broadcast
hour of each day that a posted notice is required.
Section 720.303(2)(c), Florida Statutes, applicable to
HOAs, likewise provides that notices of all board
meetings must be posted in a conspicuous place in
the community at least 48 hours in advance of a
meeting, except in an emergency. Unlike the law for
condominiums, there is no requirement that an
agenda be included in the notice. As an alternative to
posting, notice of board meetings can be mailed or
delivered to each member at least 7 days before the
meeting. For communities with more than 100
members, the bylaws may provide for a reasonable
alternative to posting or mailing of notice for each
board meeting, including publication of notice,
provision of a schedule of board meetings, or the
conspicuous posting and repeated broadcasting of
the notice on a closed-circuit cable television system
serving the homeowners' association.
No assessments may be levied at a homeowners'
association board meeting unless the notice of
meeting includes a statement that assessments will be
considered and the nature of the assessments.
Written notice of any meeting at which special
assessments will be considered or at which
amendments to rules regarding parcel use will be
considered must be mailed, delivered, or
electronically transmitted to the members and parcel
owners and posted conspicuously on the property or
PAGE 2
BECKER & POLIAKOFF
COMMUNITY ASSOCIATION SUNSHINE LAW
PAGE 4
PAGE 5
BECKER & POLIAKOFF
COMMUNITY ASSOCIATION SUNSHINE LAW
PAGE 6
First, almost all community associations fall into one
of three categories: a condominium association
(governed by Chapter 718 of the Florida Statutes); a
cooperative association (governed by Chapter 719);
or a homeowners' association (governed by Chapter
720). The sunshine laws applicable to condominiums
and cooperatives discussed herein are essentially
identical, so when we mention the law for condos,
you can assume that it applies to co-ops as well. The
law for HOAs is similar to the condominium
counterpart, but slightly different in a few key
respects, as we will see.
Like any beginners course, we must of course start
with the definitions. All of the relevant laws define a
"meeting" of the association's board as any "gathering"
of a "quorum" of the board where association business
is "conducted."
The first relevant point is that a quorum must be
present. This is different than the sunshine laws for
public officials, where two or more public officials
cannot meet, even if this constitutes less than a
quorum. The association law is more liberal in this
regard and two directors can discuss association
business (except in the case of a three-member board).
One of the most frequently debated topics is what
constitutes the "conduct" of business. We have seen
many associations whose directors meet under the
auspices of "executive sessions", "planning meetings",
or "agenda development workshops", argue that a
quorum of the board could gather out of the sunshine
as long as no binding votes were being taken.
We are frequently asked the question, "What is the Sunshine Law?" Although Florida's
Sunshine in Government Act does not apply to community associations, the statutes
applicable to condominiums, cooperatives, and homeowners' associations each contain
their own "sunshine" requirements. We use the term "sunshine" as a shorthand phrase, and
not as a legal definition. We are pleased to offer you this guide, which sets forth the various
"sunshine" requirements applicable to community associations. We encourage you to refer
to Florida Statutes and current case law as the definitive source on these legal issues.
Community Association Sunshine Law
MEETING NOTICE REQUIREMENTS
Sunshine Laws for Committees
As we have learned by now, the sunshine laws for
condominium associations and homeowners'
associations contain many similarities, but also
some important differences.
For both condos and HOAs, there are certain
committees that must always operate in the
sunshine, which means they must post notice of
meetings, permit all association members to attend
meetings and keep minutes. Operating in the
sunshine also means the committee must permit other
unit owners to speak to designated agenda items.
The sunshine laws for homeowners' associations
apply to committees that can make final decisions
regarding the expenditure of association funds, or
committees that are vested with the power to
approve or disapprove architectural decisions with
respect to parcels in the community. The sunshine
laws for condominiums apply to committees that
are empowered to take final action on behalf of the
board, or committees that make recommendations
to the board regarding the association budget. A
committee to which sunshine laws apply is
commonly referred to as a "statutory committee."
Regardless of what the bylaws say, the sunshine
requirements always apply to those committees
that are required to have open, noticed meetings.
For all other committees, there is a significant
difference between condominium law and HOA law.
For homeowners' associations, committees that are
not required by statute to have open, noticed
meetings are not subject to sunshine requirements.
Conversely, the condominium statute provides that
all committees are subject to sunshine requirements
unless the bylaws for the association specifically
exempt committees from the sunshine laws. In our
experience, very few older bylaws for condominium
associations exempt committees, and in such cases,
the sunshine rules apply to all condominium
association committees, not just statutory committees.
One final point to note is that members of
condominium associations may tape record or
videotape meetings of statutory committees. They
may also tape record or videotape meetings of non-
statutory committees unless the Bylaws contain the
above-noted exemption. HOA members do not,
however, have a right to tape record or videotape any
committee meetings, even those meetings of
committees which must operate in the sunshine.
Exceptions to the Sunshine Law
Every rule has its exceptions. In this section, we will
look at the exceptions to the sunshine laws for
condominium and homeowners' associations.
As noted previously, there are no exceptions to the
sunshine law for "executive sessions", "planning
sessions", "fact-finding missions", or for any other
gathering of a quorum of the board (or, where
applicable, committees) for the purpose of conducting
association business. Remember, votes need not be
taken for association business to be conducted.
However, the laws for HOAs and condominiums
provide an exemption regarding legal meetings,
found in Section 718.112(2)(c) (3) of the
Condominium Act and Section 720.303(2)(b) of the
HOA Act. Specifically, there is an exception to the
requirement that board meetings and committee
meetings be open to the owners when there are
meetings between the board or a committee and the
association's attorney with respect to "proposed or
pending litigation", if the meeting is held for the
purpose of "seeking or rendering legal advice."
Therefore, association boards (or committees) may
hold closed meetings if they are meeting with legal
counsel to discuss proposed or pending litigation. The
rationale for the exemption is obvious. For example,
if an association is involved in litigation with a
member, it would be unfair to the association to
permit the member to attend meetings with the
association's attorney to discuss the strengths and
weaknesses of the case, strategic issues, and the like.
Second, the HOA and condominium laws also
contain another exemption, which is found at Section
720.303 (2)(b) of the HOA statute and Section
718.112(2)(c)3 of the Condominium Act. This law
provides that meetings between a quorum of the
board may be closed when "personnel matters" are
under discussion. Presumably, "personnel matters"
would be limited to the discussion of specific issues
pertaining to employees of the association.
Boards (and committees) should also keep minutes of
attorney-client privileged meetings, particularly if a
vote is taken at the meeting. The minutes should
never reflect attorney-client privileged information,
but only who attended the meeting and proper
documentation of any vote that was taken.
Type of Meeting Condo/Co-op HOA
Board Meeting 48 hours posted with agenda 48 hours posted (or pursuant to bylaws)
Budget 14 days mailed (along with a copy of Pursuant to documents
Meeting the proposed budget) and posted, unless
documents require a longer time period
Board Meeting 14 days mailed and posted - Notice must 14 days mailed and posted - Notice must
To Levy An also include a statement that assessments will be also include a statement that assessments
Assessment considered and provide the nature, estimated cost, will be considered and the nature of
and description of the purposes for the assessments assessments
Board Meeting 14 days mailed and posted Not Applicable (unless required
To Establish by documents)
Insurance Deductible
Board Meeting 14 days mailed and posted 14 days mailed and posted
To Adopt Rules
Regarding Unit
or Parcel Use
Annual 60 days for first notice; 14 days for second 14 days mailed, delivered or
Meeting notice, mailed, delivered or electronically electronically transmitted
transmitted and posted (unless bylaws provide otherwise)
Member Pursuant to bylaws (usually at least 14 days 14 days mailed, delivered or
Meeting (other than mailed, delivered or electronically electronically transmitted (unless
Annual Meeting) transmitted) bylaws provide otherwise)
Committee Committees that take final action on behalf of Must be posted 48 hours in
Meeting the board or make recommendations to the advance when a final decision
board regarding the association budget must will be made regarding the
notice their meetings 48 hours in advance, and expenditure of association funds
the meetings must be open to unit owners. and to meetings of any committee
Committees that DO NOT take final action vested with the power to approve
on behalf of the board or make or disapprove architectural
recommendations to the board regarding decisions with respect to a
the association budget must notice their specific parcel of residential
meetings 48 hours in advance, and the property owned by a member of
meeting must be open to the unit owners the community.
UNLESS the bylaws provide otherwise.
Meetings with Must be noticed 48 hours in advance, but Must be noticed 48 hours in advance (or
the Association are not open to unit owners when the pursuant to the documents) but are not
Attorney Association’s attorney is present and the open to owners when the Association’s
(Board or meeting is held for the purpose of seeking attorney is present and the meeting is
Committee) or rendering legal advice with respect to regarding proposed or pending litigation
proposed or pending litigation. where the contents of the discussion
would otherwise be governed by the
attorney-client privilege.
Meetings Must be noticed 48 hours in advance, but Must be noticed 48 hours in advance (or
Regarding are not required to be open to unit owners pursuant to the documents), but are not
Personnel Matters when the meeting is held for the purpose required to be open to owners when the
(Board only) of discussing personnel matters meeting is held for the purpose of
discussing personnel matters
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