Hoa And Sunshine Laws: What You Need To Know

The Sunshine Law, also known as the Government-in-the-Sunshine Law, is a US law that requires government meetings to be open to the public. While this law does not apply to private entities such as homeowners' associations (HOAs), they are sometimes required to follow parts of it if they have been given authority to perform a government function. HOAs have their own sunshine requirements, which are either dictated by their governing documents or state statutes, and these generally afford members the right to attend and speak at board meetings, obtain copies of association records, and review HOA records.

Homeowners' associations are private entities

The Sunshine Law, also known as the Government-in-the-Sunshine Law, is a Florida statute that supports the right of the public to have access to government meetings and records. The law dictates that meetings or discussions between two or more members of a public board on a matter that will likely come before the board for action must be open to the public.

While the Sunshine Law does not apply to homeowners' associations, these groups must comply with certain regulations. For example, any meeting of a homeowners' association's board of directors must be open to all members of the group, except in instances where attorneys are present and outside attendance would violate attorney-client privilege.

Homeowners' associations are also required to prepare an annual budget and provide a copy to every member of the organisation. If the board does not provide a copy, it must issue a written notice stating that a copy can be obtained if a member so desires. In addition, all other documents relevant to the organisation, including meeting minutes, must be maintained so that any member can be granted access at any time. If a member attempts to view documents and is refused or the files are not available, that member is eligible to collect damages.

While the Sunshine Law does not apply to homeowners' associations, these associations have their own "sunshine" requirements, either dictated by their governing documents or state statutes. These requirements generally afford owners the right to attend (and speak at) board meetings and obtain copies of association records, among other things.

HOA boards must strive for transparency

The HOA board of directors represents and is accountable to the membership. Therefore, it is essential to make reasonable efforts to disseminate information and meet with members. HOA boards should be proactive in sharing information with their members and providing access to meetings and records. This includes providing notice of board meetings, allowing members to attend and speak at these meetings, and making relevant documents available upon request.

Meeting "sunshine" laws come into effect when a quorum of the HOA board gathers to conduct association business. A quorum typically refers to a majority of the board members. In the case of a five-member board, three members would constitute a quorum. Notice requirements for these meetings vary, but they generally include posting notices at least 48 hours in advance on the condominium property or in the association's bylaws.

While HOA boards are not subject to the same level of scrutiny as government entities, they must still comply with certain regulations. For example, they are required to prepare and distribute an annual budget to all members. This budget outlines estimated revenues and expenses, providing financial transparency to the community. Additionally, HOA boards must maintain other relevant documents, such as meeting minutes, and make them accessible to members upon request.

It is important to note that there are exceptions to the transparency requirements. Meetings between the HOA board and its attorney regarding pending or potential litigation may be closed to members to protect attorney-client privilege. However, in all other matters, the HOA board should strive for openness and transparency, fostering a positive and informed relationship with the community it serves.

HOA meetings are subject to specific requirements

In the context of HOAs, which are private entities, the specific Sunshine Laws do not directly apply. However, HOAs are still subject to their own set of "sunshine"-type requirements, as outlined in their governing documents or state statutes. These requirements emphasize openness and accessibility for HOA members.

For instance, in the state of Florida, HOA meetings must be open to all members, except when attorneys are present and external attendance would violate attorney-client privilege. This is stipulated in Section 617.303(2) of the Florida Statutes. Additionally, when a quorum of the HOA's board gathers to discuss association business, it is considered a board meeting, and proper notice must be given to the members.

The Florida Statutes also impose specific obligations on HOAs regarding record-keeping and transparency. For example, HOAs are required to prepare and distribute an annual budget to all members, outlining estimated revenues and expenses. If a member is denied access to HOA documents, they may be eligible for damages.

While the specific regulations may vary across different states, the overarching principle of openness and member engagement remains consistent. HOA boards should strive to make reasonable accommodations for information dissemination and actively encourage member participation.

HOA members have certain rights

Firstly, HOA members have the right to be free from discrimination. According to the Fair Housing Act, HOAs cannot discriminate against members or potential members based on race, colour, religion, sex, disability, familial status, or national origin. This means that the HOA cannot prevent buyers from purchasing a house in the community, make it difficult for them to do so, or deny their requests because of their protected status.

Secondly, HOA members have the right to be part of the rule-making process. The HOA board cannot make impulsive decisions without proper procedure and discussion. Rule changes must go through a vote, and the board must consider feedback from homeowners. Adequate notice of any rule changes must be given, and members have the right to challenge the HOA's authority if they believe a rule is unreasonable or illegal.

Thirdly, HOA members have the right to question fines. While an HOA can generally fine its members for violating covenants, these fines must be reasonable and justified. Most HOAs allow members to appeal fines through a standard appeals process, and members have the right to present evidence to support their claims.

Fourthly, HOA members have the right to voice their opinions and complaints. The HOA cannot restrict members from speaking up if they have an issue or problem. Members can file formal complaints, attend open board meetings, and participate in open forums to address their concerns.

Fifthly, HOA members have the right to sue the association. If a member believes the HOA has breached its fiduciary duties or wronged them in some way, they can take legal action. However, many HOAs require members to go through an internal conflict resolution process first, such as hearings or mediation.

Lastly, HOA members have the right to be notified of and participate in HOA meetings. The HOA cannot hold secret meetings or conduct "working meetings" outside of official board meetings. Meetings must be announced in advance, and members have the right to attend and speak at these meetings.

It is important to note that HOA rights and obligations can vary depending on the state and local laws, as well as the community's governing documents. Members should familiarise themselves with these laws and documents to understand their specific rights and responsibilities.

HOA boards can adopt their own rules

The HOA board of directors represents the membership and is accountable to the membership. Therefore, it is important that they make reasonable accommodations to disseminate information and meet with members. HOA meeting requirements are usually addressed in the governing documents, but these documents may not always address record retention and dissemination in great detail. In such cases, the fallback is the state's non-profit corporation statutes, as HOAs are non-profit corporations.

State statutes are generally very specific about what non-profit corporations are required to do with membership communications and record-keeping. The membership's right to review HOA records is an important aspect of this. If it is not addressed in the governing documents, it is usually found in the state statutes. These statutes will typically mandate what records members are entitled to and the process for obtaining those records. For example, a member may have to pay for the procurement expense of the records.

It is always best to be as open as possible when dealing with the membership, except in matters dealing with litigation or potential litigation. A board of directors adopting this type of policy will generally find that the worst thing an HOA member can say is: "I do not like what the board did in this matter, but they answered my questions and gave me everything I asked for."

Florida's Homeowners' Association Act grants members the right to attend board meetings and the right to speak at meetings of the board with reference to all designated items, as well as the right to tape record or videotape board meetings. An HOA may also adopt reasonable rules governing the right of members to speak and governing the recording of the meetings. For example, an HOA's rules might require the use of a sign-up sheet for members who wish to speak.

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