Recent amendments to section 720.303, Florida Statues, which take effect July 1, 2018, provide that members of the board of directors for a homeowners’ association are allowed to use e-mail as a means of communication; however, a board member may not cast a vote on any association matter via e-mail. Similar language was enacted in 2014 in Chapter 718, Florida Statutes, governing condominium associations. The issue many associations are facing is whether written consent may be sent via e-mail notwithstanding the amendment to section 720.303, and the similar provision found in section 718.112(2)(c), Florida Statutes, prohibiting voting on an association matter via e-mail.
Many condominium and homeowners’ associations’ governing documents allow the board to take action without a meeting by unanimous, written consent signed by all of the directors. Section 617.0821 of the Not-For-Profit Corporation Act similarly provides as follows with regard to action by directors without a meeting:
- Unless the articles of incorporation or the bylaws provide otherwise, action required or permitted by this act to be taken at a board of directors’ meeting or committee meeting may be taken without a meeting if the action is taken by all members of the board or of the committee. The action must be evidenced by one or more written consents describing the action taken and signed by each director or committee member.
- Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.
- A consent signed under this section has the effect of a meeting vote and may be described as such in any document.
Section 617.0821, Florida Statutes, and many condominium and homeowners’ associations’ governing documents allow action by unanimous, written consent but avoid using the word “vote”. Arguably, action taken by unanimous, written consent has certain safeguards that would not be present if an association’s board of directors merely conducted a vote by e-mail and, therefore, action taken by unanimous, written consent should not be prohibited simply because it is delivered via e-mail as opposed to mail or hand delivery. The distinction between a formal consent circulated via e-mail and an e-mailed poll or vote of the board may seem inconsequential. But, there are important differences. Most importantly, all directors must express their consent unanimously. The directors must also receive a complete description of the proposed action, and they must “sign” the consent. The signature gives some assurance that the director actually consented.
If an association takes action via written consent, we recommend that the proposed action be clearly described and that the directors’ consent be expressed in unequivocal terms. The consent should not be accompanied by any contingent or qualifying language (such as “yes, but only if…”). The directors’ consent should be expressed on the communication with a signature and the communication should be dated. Pursuant to Florida’s Electronic Signatures Act of 1996, the signature on a written consent may be an electronic signature, which is “any letters, characters, or symbols, manifested by electronic or similar means, executed or adopted by a party with an intent to authenticate a writing.” § 668.003(4), Fla. Stat. Consequently, the signature may simply be the typing of a person’s name coupled with the intent to authenticate the e-mail. Each signed, written consent should be kept with an association’s minutes as part of the association’s official records.
While we believe that action may be taken by an association via unanimous, written consent delivered via e-mail, given the lack of authority on this issue, a court of competent jurisdiction could find that a unanimous, written consent delivered via e-mail is essentially the same as a vote via e-mail and is prohibited by Chapters 718 and 720 of the Florida Statutes. Consequently, we recommend that associations take action at duly noticed board meetings when at all possible. A board should only take action by written consent (delivered via e-mail) when strictly necessary and when a duly noticed board meeting cannot feasibly be scheduled. This will not only avoid a potential challenge based on the prohibition against voting via e-mail in sections 720.303 and 718.112(2)(c), Florida Statutes, but it will also allow for better consideration of the issues.
If you have any questions about this topic, please contact us at 813.229.7600.
*Shumaker, Loop & Kendrick, LLP appreciates the support of Westchase Community Association, Inc. in the publishing of this blog post.