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Dear Poliakoffs,

My HOA has a seven-person board; at the start of each monthly meeting they count a quorum as those present in person and also those on the other end of an open cell phone line or some computer link. Can the board determine a quorum in this manner and are motions passed that count absent board members legally binding on the community?

Signed, K.L.

Dear K.L.,

I believe it’s proper, but it’s also not expressly stated in the statute. The Condominium Act, at Section 718.112, Fla. Stat., expressly states that a board or committee member may participate in a meeting via telephone, video conferencing or other real-time communication method, so long as everyone can hear what that person is saying. The HOA Act does not have similar language, but the absence of that language does not, by itself, mean that meeting that way is improper. The Not For Profit Corporation Act, Chapter 617, also governs condominiums, HOAs and cooperatives, so long as there is nothing in those acts that directly conflicts the Not For Profit Corporation Act. Section 617.0820, Fla. Stat. (Meetings) expressly says that “unless the articles of incorporation or the bylaws provide otherwise, the board of directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.” So, assuming your HOA is a not-for-profit corporation (the vast majority are), and assuming there is nothing in the bylaws or articles that would prohibit virtual participation in a board meeting, it should fall under that statute. And frankly, in the modern world, this just makes good sense, and I would be very surprised if a judge would invalidate board action because one or more directors participated virtually, even in the absence of these statutes.

Dear Poliakoffs,

Is it legal for the board president and vice president to also be in charge of the architectural control committee?

Signed, D.D.

Dear D.D.,

Sure. It all depends on the declaration of covenants and/or bylaws, and how it describes the committee. In many (or even most) associations architectural review may be conducted by a committee appointed by the board or the board itself; and there is no particular reason that board members would be prohibited from serving on the committee, even if that wasn’t the case. Assuming that there is nothing in your declaration or bylaws that expressly requires the committee to be independent (which, frankly, I have never seen), I see no reason that one or more board members or officers cannot serve on an architectural control committee (and even be the chairperson of such committee).

Dear Poliakoffs,

With respect to a question you recently answered concerning fines in HOAs and the maximum fine that an HOA can charge, do the same rules apply to condominiums?

Signed, R.B.

Dear R.B.,

Actually, condominiums are even stricter.

The HOA Act provides that fines cannot exceed $100 per violation unless the governing documents provide otherwise; and fines cannot exceed $1,000 in the aggregate for a continuing violation; again, unless the governing documents provide otherwise. That means, of course, that a set of HOA governing documents could authorize nearly unlimited fine amounts and aggregate fine amounts, although totally uncapped fines are somewhat unusual; and I question whether a judge would ever approve an exorbitant fine. In an HOA, a fine of $1,000 or greater can become a lien on a lot, subject to foreclosure.

In contrast, condominium fines cannot exceed $100 per violation, or $1,000 in the aggregate for a continuing violation, regardless of any language in the governing documents that would authorize larger fines. And, condominium fines cannot become a lien on a unit under any circumstances.

Keep in mind that if condominium or HOA governing documents provide for a smaller maximum fine (or maximum aggregate fine), that smaller cap would apply. So, if your condominium declaration states that the board can impose fines of up to $50 per violation, the board cannot then impose a $100 fine, just because it’s allowed by the statute.

Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. 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 condocolumn@gmail.com. Please be sure to include your location.

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This article originally appeared on Florida Today: Poliakoff: HOA board members may participate virtually in meetings