COMMUNITY LIFE: Can homeowners' association board meet in private?
Q: During one of our association board meetings, an owner started yelling so loudly that the board could not conduct association business. Eventually, the owner calmed down and the board was able to address its business. Could the board have adjourned the meeting and reconvened in executive session so that it could conduct its business behind closed doors without member involvement?
– (R.G. via email)
A: The Condominium Act (Chapter 718 of the Florida Statutes), the Florida Cooperative Act (Chapter 719 of the Florida Statutes) and the Florida Homeowners’ Association Act (Chapter 720 of the Florida Statutes) each provide that when a quorum of the board meets to conduct association business (not even necessarily vote on anything), that business must be conducted at an open meeting that owners are entitled to attend and speak as to each agenda item. Similar rules apply in certain association committees.
All three laws provide two exceptions to the open meeting rule. A quorum of the board may meet in a closed session (without members present) if the board will be discussing proposed or pending litigation with the association’s counsel present (in person or by telephone). A quorum of the board may also meet behind closed doors if the board will be discussing “personnel” issues, which is generally limited to issues involving the association’s employees. The association’s counsel need not be present at a meeting where personnel issues are addressed. If any other matters are to be considered, they must be considered at an open meeting.
It is also important to remember that, even if a meeting can be held as a closed meeting, there is no exception to the notice requirement found in the statutes. Except in an emergency, notice of the meeting must be posted even though no members are entitled to attend. Additionally, minutes of the meeting must be kept, though I recommend that minutes of closed board meetings be prepared, or at least reviewed, by legal counsel.
There is no easy solution for dealing with disruptive owners at meetings. In extreme cases, adjourning the meeting may be the only option, although that is letting the disruptive person control the association’s ability to conduct its business. My general recommendation is for the board to adopt a rule governing owner conduct at association meetings, including only speaking after having been recognized by the chair. Violations can be dealt with in a number of ways, including the levy of fines and suspension of common facility use rights.
Q: I live in a homeowners association and the lots are relatively small. My neighbor has a very, mature tree located on his property. The branches extend over onto my property and are damaging my pool cage. Do I have the right to cut the branches? If I do, can my neighbor sue me?
– (T.R. via email)
A: There have been several appeals court cases in Florida addressing this very issue. In one case from 1984, a property owner sued for money damages based on the alleged “negligence” by his neighbor in allowing branches of a Ficus tree to extend over the property line. The court in that case confirmed the right of the neighbor to cut off intruding roots or branches at the property line and rejected any negligence theory.
The rule of common law (developed by court decisions), and the majority rule in this country (which is followed in Florida), is that a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The adjoining property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner’s own expense, any encroaching tree roots or branches and other vegetation which has grown onto this property.
Local codes and any rules of an association regulating tree trimming also need to be taken into account.
— Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Adams has practiced law in Southwest Florida for 30 years, and spent the past 28 years focusing his practice on condos and homeowner associations. His firm represents more than 4,000 associations in Florida, including some 1,000 associations in the Southwest Florida market. He is counsel to many condo associations on Marco Island. Send questions by email to jadams@ bplegal. com. Past editions may be viewed at floridacondohoalawblog.com or at marcoislandflorida.com/real estate