Effective communication requires a combination of open Meetings, frequent Newsletters, an updated Website, Board Correspondence and Direct Owner Contact.
Prohibition Against SLAPP Lawsuits (Statute 718.1224)
SLAPP (Strategic Lawsuit Against Public Participation)
Unit Owners’ Rights: This Legislation, effective 7/1/24, reaffirms and protects the right of condominium unit owners to instruct their representatives and petition for redress of grievances before their condominium associations as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. SLAPP lawsuits have occurred when association members are sued by condominium associations, individuals, business entities, or governmental entities arising out of a condominium unit owner’s appearance and presentation before the board of the condominium association or a governmental entity on matters related to the condominium association.
Prohibiting SLAPP Lawsuits: It is the public policy of this state that condominium associations do not engage in SLAPP suits. Prohibiting such lawsuits by condominium associations against condominium unit owners who address matters concerning their condominium association will preserve this fundamental state policy, preserve the constitutional rights of condominium unit owners, ensure the continuation of representative government in this state, and ensure unit owner participation in condominium associations.
Lawsuits Filed Without Merit: A condominium association in this state may not file or cause to be filed through its employees or agents any lawsuit, cause of action, claim, cross-claim, or counterclaim against a condominium unit owner without merit and solely because such condominium unit owner has exercised the right to instruct his or her representatives or the right to petition for redress of grievances before the condominium association or the various governmental entities of this state.
Retaliatory Conduct: It is unlawful for a condominium association to fine, discriminatorily increase a unit owner’s assessments, discriminatorily decrease services to a unit owner, or bring or threaten to bring an action for possession or other civil action, including a defamation, libel, slander, or tortious interference action, based on conduct described in this subsection. For the unit owner to raise the defense of retaliatory conduct, the unit owner must have acted in good faith and not for any improper purposes, such as to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation. Evidence of retaliatory conduct may be raised by the unit owner as a defense in any action brought against him or her.
Examples of When Retaliation is Prohibited: Examples of conduct for which a condominium association, an officer, a director, or an agent of an association may not retaliate include, but are not limited to, situations in which:
(a) The unit owner has in good faith complained to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the condominium,
(b) The unit owner has organized, encouraged, or participated in a unit owners’ organization,
(c) The unit owner submitted information or filed a complaint alleging criminal violations or violations of this chapter or division rules with any governmental agency,
(d) The unit owner has exercised his or her rights under this chapter,
(e) The unit owner has complained to the association or any of the association’s representatives for the failure to comply with chapters 718 or 617, or
(f) The unit owner has made public statements critical of the operation or management of the association.
Expeditious Disposal of SLAPP Lawsuits: It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts. A condominium unit owner sued by a condominium association has a right to an expeditious resolution of a claim that the suit is in violation of this section. A condominium unit owner may petition the court for an order dismissing the action or granting final judgment in favor of that condominium unit owner. The petitioner may file a motion for summary judgment, together with supplemental affidavits, seeking a determination that the condominium association’s lawsuit has been brought in violation of this section. As soon as practicable, the court shall set a hearing on the petitioner’s motion, which shall be held at the earliest possible time after the filing of the condominium association’s response.
Damages, Fees & Costs: The court may award the condominium unit owner sued by the condominium association actual damages arising from the condominium association’s violation of this section. A court may treble the damages awarded to a prevailing condominium unit owner and shall state the basis for the treble damages award in its judgment. The court shall award the prevailing party reasonable attorney’s fees and costs incurred in connection with a claim that an action was filed in violation of this section.
Use of Association Funds for SLAPP Lawsuits: Condominium associations may not expend association funds in prosecuting a SLAPP suit against a condominium unit owner. Condominium associations may not expend association funds in support of defamation, libel, slander, or tortious interference action against a unit owner or any other claim against a unit owner based on conduct described herein.
Board/Homeowner Inquiries
Prompt Board response to owner correspondence (emails, letters, etc.) is very important, enabling owners to feel that their input and concerns are valued.
Florida Statute 718.112(2)(a)2 says that "when a unit owner files a written inquiry by certified mail with the board of administration, the board shall respond in writing to the unit owner within 30 days of receipt of the inquiry. The board’s response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division."
If the board requests advice from the division, the board must respond within 10 days of its receipt of the advice. If a legal opinion is requested, the board has 60 days to respond.
Right of Owners to Assemble
Florida Statute 718.123 grants the right of owners to peaceably assemble:
(1). All common elements, common areas, and recreational facilities serving any condominium shall be available to unit owners in the condominium or condominiums served thereby and their invited guests for the use intended for such common elements, common areas, and recreational facilities, subject to the provisions of s. 718.106(4) (See below). The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities. No entity or entities shall unreasonably restrict any unit owner’s right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common elements, common areas, and recreational facilities.
(2). Any owner prevented from exercising rights guaranteed by subsection (1) may bring an action in the appropriate court of the county in which the alleged infringement occurred, and, upon favorable adjudication, the court shall enjoin the enforcement of any provision contained in any condominium document or rule which operates to deprive the owner of such rights.
Corresponding with Owners
Primary methods for Association communication with members are as follows:
- Newsletters & bulletins
Board & Committee meeting Notices with agendas
First & second Annual Meeting notices (January/February & March)
Proposed and final annual budgets (November)
Annual audited financial report (April)
Board letters to specific owners (as required)
Owner Email Address Usage
The email address that you provide becomes part of the Association's "Roster of Unit Owners", and its use is regulated by the Official Records section (12) of Florida Statute 718.111.
Paragraph (a)7 of this section says that the Association shall maintain: "A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the electronic mailing addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with subparagraph (c)5. However, the association is not liable for an inadvertent disclosure of the electronic mail address or facsimile number for receiving electronic transmission of notices."
Paragraph (c)5 says that this information is used to fulfill the association's notice requirements. The paragraph also regulates the printing and distribution of the owners' directory.
Following is a summary of the statutes referenced above:
- An association may print and distribute to owners a directory containing the name, address and phone number (but not email address) of each owner. An owner may request in writing to exclude telephone number.
- Owner email addresses are maintained by the association for those owners who consent to receive notices by electronic transmission.
- The electronic mailing addresses are not accessible to unit owners if consent to receive notice by electronic transmission is not provided.
- The association is not liable for an inadvertent disclosure of electronic mail addresses.
Association Newsletters
Regular, as a minimum quarterly, and timely Newsletters provide another important official Board communication tool. Newsletters should clearly communicate factual information to help owners understand the progress and accomplishments of the Association. They should not be used to promote a particular opinion, agenda, or political position.
Following are recommended Newsletter contents:
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Board Member Email Communications
A July 1st 2014 change in Florida’s condominium statutes involved board member email communications. Statute 718.112(2)(c), which addresses board of administration meetings, now reads “Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail”.
Although this change acknowledges and authorizes board member communication via e-mail, it leaves a number of unanswered questions:
- Exactly what actions can board members take via email, and where do the statutes draw the line short of “casting a vote on an association matter”?
- Can emails be used for obtaining “unanimous written consent” on official board actions?
- Are emails between board members considered “official records” of the association? If so, this opens a multitude of questions, including how they should be retained, whether they can be obtained/viewed by owners, etc.
Item #15 of Florida Statute 718.111(12)(a) includes as Official Records “All other records of the association not specifically included in the foregoing which are related to the operation of the association.” Management office and Board member emails are certainly used in the “operation of the association”. Therefore board member emails may be considered “official records” making them available for viewing by homeowners who request them. The only exception would be for those emails protected by the lawyer-client privilege or containing certain confidential personnel information.
Regarding the second question, a Palm Beach Post reader asked the Poliakoff attorneys, in a 7/27/14 posting, whether “the board could use a unanimous written consent, executed in counterparts, to meet the requirements for a traditional meeting?” Gary & Ryan Poliakoff responded that:
“Not all attorneys agree. Most attorneys have said that, unless expressly barred otherwise by the governing documents, unanimous written consents may be used for official board actions. We do know of some attorneys who feel that the governing documents must expressly provide for action by unanimous written consent, but that seems to be a minority opinion. It’s also important to note that some decisions — such as considering a special assessment or passing a rule regarding unit use in a condominium — require written notice to owners, and for those decisions it is doubtful that a unanimous written consent would suffice.”
Jupiter Bay’s governing condominium documents make no mention of email usage and do not provide for unanimous written consent as an allowed means of taking board actions. On the other hand, they do not expressly bar the use of this method. This leaves us with a number of unanswered questions for future statute amendments, or the Association's attorneys, to address.