In wake of pandemic, case against Zoom-only condo board meeting now in crosshairs

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.

COVID brought with it monumental changes in the way we operate and do business. One of the biggest changes was the widespread integration of teleconferencing into our daily lives. In the community association world, most associations held their board and membership meetings via Zoom, and the vast majority continued with Zoom meetings after the pandemic, with some communities using Zoom as a supplement to an in-person meeting, but others using Zoom exclusively, with no in-person element, at all.

Neither the Condominium nor HOA Acts expressly say that meetings must be held at a physical location.

The Condominium Act says that meetings are open to all owners, and it expressly says that board and committee members may participate by video conference; but it doesn’t expressly say anything about owners.

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The HOA Act is similar in that it also says that meetings must be open to all members and that a meeting occurs whenever a quorum of the board “gathers” to conduct business. It also says that members have a right to “attend” board meetings (interestingly, the HOA Act fails to expressly say that telephonic or video conference participation by board members is proper, though I can’t think of a good reason that it wouldn’t be). So, it has been an open legal question as to whether Zoom-only meetings are proper.

We now have that answer in the condominium world, as an arbitrator has recently ruled that Zoom-only meetings are not proper, and that meetings must have a physical location.

The order is not yet available to review and so I can’t report the arbitrator’s specific reasoning, but this is the first time this issue has been expressly resolved. Arbitration orders are not binding on other condominiums or arbitrators, they are not binding on courts, and they do not control homeowner’s associations; however, arbitrators do often look to other orders as at least instructive, and I think there’s a good chance, if this comes up again in arbitration, that another arbitrator would rule the same way.

So, if you are an association that is currently holding Zoom-only meetings, you may want to discuss this issue with your attorney to go over the risks and rewards and see if you want to change your practice.

There is no law saying that individual board members must attend meetings in person — and so, it might be enough to just make sure there’s a central location where owners can sit and participate via Zoom, even if most participants (board members and owners) will only be on Zoom.

Question: Our condominium board of directors used money that was earmarked for our roads a few years back to fix flooding due to a leak. Now they need over a million dollars to redo our roads. They are talking about another high assessment, even though the roads have years of life left.

Most of the people who live in this area are on fixed income and can’t afford to stay here if the board passes this assessment. The board spends our money on unnecessary things. We owners think the board should hold off on redoing the club house or buying new furniture till we have the money; but the board disagrees. Is there any way the owners can stop the board from spending so much money? Signed, C.R.

Dear C.R.,

Yes — don’t elect them again or recall them now and install a board willing to make business decisions that you and your neighbors support.

Respectfully, I doubt that your position is as universal as you suggest. If most owners disagreed with the board’s spending decisions, they could recall the board and stop those decisions on a dime. But they’re either not sufficiently motivated to take action, or the opinion is not as universal as you suggest.

Different people will always have different opinions regarding how to spend money (recognizing that there are certain repairs the board is legally responsible to complete) and so, as is so often the case, your problem is a political one, and not a legal one.

There is no court or arbitrator that is going to order the board to stop maintaining the property. If you and a majority of your neighbors think the board is wasting your money on other unnecessary expenditures, you can get rid of the board and choose directors who agree. If instead it’s only a vocal minority that disagree with the board, there’s not much that you can do — the decision of how and when to maintain the property is something the board should properly decide.

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 condocolumn@gmail.com. Please be sure to include your location.

This article originally appeared on Palm Beach Post: Expert on why it's time to reconsider Zoom-only condo board meetings