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Our new president, at his first monthly meeting, decided to videotape the meeting (without consulting the rest of the board). What bothers us is that he posted the video on YouTube for the world to see. Is this legal?

You don’t specify whether you are in a condominium, cooperative or a homeowner’s association, but in all cases the relevant statutes specify that owners are expressly permitted to videotape meetings (and, that would include the president, whether or not the board agrees). While the Acts do specify that the Association may make reasonable rules and regulations regarding the tape recording and videotaping of meetings, at least with respect to condominiums the Florida Administrative Code provides that there are only four types of “reasonable” rules that can be passed—a rule that the equipment cannot produce distracting sound or light emissions; that the equipment must be assembled and placed in position in advance of the commencement of the meeting; that anyone videotaping cannot move about the room during the meeting; and that advance notice be given to the board. But, absent those rules being passed by your association, there are no restrictions at all, and this would include a restriction on where the footage of the meeting can be displayed publicly. This is a very significant hole in law, because there may be issues discussed at open meetings that, if public, would arguably violate other laws (such as laws protecting debtors where delinquencies are concerned). The board could attempt to pass a rule limiting not the recording of the meeting itself, but instead how that recording is disseminated or used after the fact, but as far as I know the enforcement of such a rule would be an open question, as this issue has not been considered by the courts.

Can one board member hold more than one office? For example, can the vice president also be a secretary, or can the president also be a treasurer?

The Not For Profit Corporation Act (Chapter 617, Fla. Stat.), at Section 617.0840, expressly states that the same person may hold more than one office in a corporation.  The only barrier to a person holding more than one office would be found in your bylaws or articles. So, it is generally fine to have a combination vice president/treasurer; or a treasurer/secretary. The only officer positions I would recommend against combining would be the president and secretary, as both are typically required to sign official documents, and so you ideally need two separate officers.

Also, just as a reminder, the directors and officers are not synonymous. In many corporations, including in some condominiums, the officers are not also directors. So, when you ask “can one board member hold more than one office,” what you are really asking is if one person can hold more than one office—whether that person is a director or not.

I live in a condominium community with 350 units. Our clubhouse currently has carpet and laminate flooring. The board wants to install poured cement flooring throughout.  I feel this is a material change requiring unit owner approval; and, if an owner does not vote, that would effectively count as a no-vote. What is your definition of a material change?

Generally speaking, and summarizing based on the relevant case law, a “material” alteration is one that palpably or perceptively changes the use, function, form or appearance of the property. So, I think there is no question that changing from carpet and laminate flooring to poured concrete is a material alteration, and it would require the approval of whatever percentage of the membership is specified in your declaration of condominium; or of the statutorily required 75% of the total votes if your declaration is silent.

There is a chance that an arbitrator would find that this change falls within the “maintenance exception” to the material alteration rule. If the purpose of the change is not to modify the appearance of the clubhouse, but instead to take advantage of new technologies and materials that enhance the association’s maintenance function, arbitrators have in those situations held that the change is an exception to the rule and does not require membership approval. But, arbitrators are somewhat variable in applying the rule, and courts do not seem to favor it, at all—so relying on such an exception is risky.

As to your question regarding whether a non-vote counts as a “no” vote, it really depends on whether your vote requires an affirmative percentage of all owners (in which event no votes and non-votes are effectively the same, as only “yes” votes count towards approval); or whether it is a percentage of those persons participating in a meeting where quorum has been attained (in which case persons who don’t participate in the meeting aren’t counted, at all—so long as enough members participate to achieve a quorum).

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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