Also: Do standing committees have to post notices of any meeting? And does failing to post a meeting/agenda info within 48 hours violate the Sunshine laws?
STUART, Fla. – Question: Our HOA Declaration prohibits “signs, banners, advertisements and posters from being exhibited, displayed, inscribed, painted, or affixed, in, on, or upon any part of the Properties without prior ARC approval.” It also provides that this prohibition includes “signs inside of Living Unit windows or the windows of motor vehicles.”
One owner has two large political flags on his truck and many owners are upset. Can these flags be prohibited based on the current restriction? – K.Z., Hollywood, FL
Answer: No. The restriction you quoted lists the prohibited items. The list does not include flags. Therefore the Latin legal principle expressio unius est exclusio alterius applies. This is a principle of statutory construction that means when one or more things of a class are expressly mentioned, others of the same class are excluded.
So, because the list does not include “flags,” flags are not prohibited. Oftentimes lists like this are proceeded with the phrase “including but not limited to … “ This phrase means the list is not exhaustive and other things in the same class may also be prohibited; but in your case, the restriction does not contain this caveat.
Question: Do standing committees have to post notices of any meeting they have where a quorum is present to discuss business and allow owners to attend and speak like at board meetings? – B.C., Boca Raton, FL
Answer: It depends on whether it is a condominium, cooperative or HOA, what type of committee it is, and what the bylaws for the association provide. Below I will explain.
The Condominium Act (F.S. 718) and Cooperative Act (F.S. 719) provide that ALL committees must meet like a board of directors (notice, members can attend, etc.) UNLESS the bylaws exclude committees from meeting like a board. The only exception are committees that take final action on behalf of the board or make budget recommendations which always have to meet like a board, regardless of what the bylaws provide. So, unless the condominium or cooperative bylaws exclude committees from meeting like a board, by default, all committees must do so.
Alternatively, the HOA Act (F.S. 720) provides the same thing but in reverse. The HOA Act provides that all committees DO NOT have to meet like a board (except committees that have the authority to take final action or ARC committees) UNLESS the bylaws provide affirmatively that all committees must meet like the board. So, UNLESS your HOA bylaws provide that committees must meet like the board, by default committees do not have to do so.
Question: My condominium association’s annual owners/election meeting was just held. There was not a 48-hour posting of the meeting/agenda in violation of the Sunshine laws. Is the meeting and election invalid as the fruit of the poisonous tree? C.G., Treasure Coast
Answer: The Condominium Act does not require a 48-hour posted notice for the annual meeting and election – it requires 14 days mailed and posted notice with an agenda. Specifically, Section 718.112(2)(d)(3) Florida Statutes provides that “Written notice of an annual meeting must include an agenda; be mailed, hand delivered, or electronically transmitted to each unit owner at least 14 days before the annual meeting; and be posted in a conspicuous place on the condominium property or association property at least 14 continuous days before the annual meeting.”
If this was not done, then the meeting could be challenged for improper notice. However, if you attended the meeting and did object at the beginning of the meeting that there was improper notice, you may have waived your right to object.
In any case, in order to challenge the election, you would have to do so within 60 days of the election. You should consult a Florida licensed attorney experienced in condominium law if you wish to proceed.
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, 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.
© 2022 Journal Media Group. Richard D. DeBoest, Esq., is partner of the Law Firm Goede, DeBoest & Cross.
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