REAL ESTATE: Condo Q&A
Q: Our condominium documents do not specifically mention any parliamentary rules or procedures that are to be used in conducting our meetings. Our president says that the meetings must be conducted pursuant to the "Florida sunshine laws." Does Florida require that meetings be run pursuant to Robert's Rules of Order, or some other parliamentary procedures? R.P. (via e-mail)
A: The Florida Statutes do not require the use of any particular parliamentary procedures or rules. Further, there is a 1960 decision from Florida's Second District Court of Appeal which holds that Robert's Rules of Order is not binding or mandatory in corporate proceedings. However, the governing documents for many communities incorporate Robert's Rules of Order as the applicable parliamentary guide for association meetings.
Robert's Rules of Order can be very confusing, and is often misquoted. Helpful tips on using Robert's Rules of Order, including handy charts, are available for free on the website of North Carolina attorney Jim Slaughter, at jimslaughter.com. Slaughter, a certified parliamentarian and immediate past president of the College of Community Association Lawyers, has also published helpful books on parliamentary procedure, including "The Complete Idiot's Guide to Parliamentary Procedure" and "Notes and Comments on Robert's Rules." These books are available in most online bookstores.
Regarding to reference to the "Florida sunshine laws," there are specific rights property owners have at association meetings. All three community association statutes provide that owners have the right to attend board meetings and speak at board meetings with reference to all designated agenda items. Members are also entitled to "participate" in membership meetings.
Further, owners are also entitled tape record or video tape board or membership meetings. The statutes all provide that associations may adopt written reasonable rules governing frequency, duration and manner of owner statements at meetings, and may also regulate the taping of meetings by owners. I have found it a good idea to have such a set of guidelines.
Q: I live in a 12-unit condominium. Our declaration of condominium provides that the flood insurance "may be purchased if the association so elects." The association currently carries flood insurance, but 9 of the 12 owners would like for the association to discontinue this policy. Is there a state law that requires the association to maintain flood insurance? R.A. (via e-mail)
A: The Florida Condominium Act provides that an association "may" obtain and maintain flood insurance for the condominium property. The statute, in a different part, also provides that an association shall use its best efforts to obtain and maintain "adequate" property insurance. Flood insurance is generally considered to be a type of "property insurance."
Thus, there is a longstanding legal debate as to whether flood insurance is mandatory under law, given the somewhat conflicting language in the statute. Some argue that "may" means just that; flood insurance is permissive (unless mandated by the declaration of condominium). Others argue that the general statutory requirement for "adequate property insurance" would require condominium associations to obtain flood insurance, at least in certain circumstances, such as the condominium being located in a Special Flood Hazard Area (SFHA), as designated by the Federal Emergency Management Agency (FEMA). Condominium units located in an SFHA will not be eligible for conventional mortgage financing without flood insurance in place.
It should also be noted that a significant percentage of flood damage occurs in non-SFHA areas, according to FEMA's publications. Thus, some argue that flood insurance is required for all condominiums, no matter where located, to meet the "adequate insurance" requirement of the law.
This is an issue that definitely needs to be cleared up by legislation. The potential for uninsured losses obviously presents important risk management issues. The association should discuss this matter both with association legal counsel and its risk management consultants, including its insurance agent, before taking action.
Joseph E. Adams has practiced law in Southwest Florida for 30 years, and spent the past 28 years focusing his entire 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 personally serves as counsel to a number of condo associations on Marco Island. Send questions c/o firstname.lastname@example.org.