Resident: My HOA is run by snowbirds. Is it 'even legal to have Canadians on board at all?'

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: Is it legal for 3/4 of the HOA board to be Canadian and to live out of the country six months of the year?  Is it even legal to have Canadians on the board at all? Signed, C.P.

Dear C.P.,

What do you have against Canadians anyway, eh? I kid of course, but there are no laws regarding condominium service and either residency or nationality. This is not a government entity, it’s a corporate board. Foreign nationals can serve on corporate boards.

The HOA Act states, at Section 720.306, Fla. Stat., that “except as provided in paragraph (b), all members of the association are eligible to serve on the board of directors.” Paragraph (b) prohibits board service by delinquent owners and felons who have not had their civil rights restored for at least five years. Those are the only legally allowable restrictions on board service.

You can’t impose requirements that the board member live on site, or that they must attend a certain number of board meetings, etc. Arbitrators have expressly held that you can bar candidates only for the above specific reasons, and no others. Ultimately, if a majority of your community do not want to elect Canadians to the board, they won’t— this is a political issue and not a legal issue.

Question: I own a unit in a condominium. The attorney of the association has written that, "neither the Condominium Act, § 718.101, Fla. Stat., et seq., nor your governing documents require presentment of an invoice to pay expenses."

Is the attorney correct, and if so, will this mean that the treasurer can write checks left and right without being obligated to have some kind of supporting document to justify the payment?  Signed, A.R.

Dear A.R.,

I am not aware of any law that requires an association to get an invoice before making payment for services. Of course, that is certainly the best practice, and I would strongly recommend such paperwork for any association, because it’s essential in the event of a dispute with the vendor; as well as essential to counter unsupported allegations of fraud or theft. It’s simply bad business to give people money without paperwork to reflect the payment.

I will note that Section 61B-22.002 of the Florida Administrative Code states that “all associations shall maintain accounting records in sufficient detail to permit determination of the revenues and expenses or receipts and disbursements attributable to separate condominiums and operating and reserve funds.” That appears to be geared towards multi-condominium associations and, in any event, it wouldn’t necessarily require invoices for payments—just proof of such payments and their purpose.

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With that said, your treasure can only “write checks left and right” if the board allows them to do so.

Among other things, the best practice in a community association is to require two signatures on all checks. And, the board ultimately controls the actions of every officer. If the board is allowing the treasurer to write any checks they want to any person with no paper trail, they are complicit in these poor business decisions, and could be held liable in the event of a loss.

Question: Our HOA board created new rules prohibiting owners from speaking at board meetings until the end of the meeting after all matters were discussed and voted on. The new rules were challenged by homeowners who argued that they did not comply with Florida laws permitting owners to speak at meetings.

Our HOA president requested an interpretation of the Florida statute by the association’s attorney. When asked about the attorney’s interpretation, the president said it was attorney-client privileged. Is the interpretation of a Florida statute considered attorney-client privileged?

After the president spoke to the association’s attorney, the new rules were changed by the HOA board allowing revised times for the homeowners to speak at HOA board meetings.  Signed, R.A.

Dear R.A.,

I think you can tell what the attorney’s opinion was based on the fact that the board changed its policy. It would certainly be my opinion that the advice provided to the HOA board is privileged. Case law is clear that an association attorney represents the corporation, and not the members; and the attorney can communicate with the board and other essential staff members (such as the manager) and maintain confidentiality.

With that said, I recall at least one case out there where a matter was discussed at an open board meeting and the board agreed at that meeting, based on the input of the owners there, to solicit a legal opinion from the attorney. In that situation, the court said that the opinion was not privileged and should be shared with the owners. It’s an outlier, and I wouldn’t read it too broadly, but one could at least argue that it applies to your circumstances.

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Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to [email protected]. Please be sure to include your location.

This article originally appeared on Palm Beach Post: HOA advice: Rule on part-time residents on homeowner's association board