Q. I know that these days more and more work is being done remotely, rather than in person, but is it legal for that trend to apply to association board meetings and decisions, too? It seems that our board is meeting less and less often, and yet decisions are apparently being made—without an opportunity for unit owners to voice their opinions, raise questions, or even know the issues that are being brought before the board. I have to assume that the “voting” is being done via email or meetings that are not advertised to owners. I’ve asked for meeting minutes, but was told there were no recent meetings recorded.

Have online and email decision-making become legitimate in this digital age? Or should the property manager be ensuring that voting is done in a public forum? If boards are meeting via Zoom, do all owners need to be notified so they can tune in, and do minutes need to be recorded for such meetings?

                                       —Lost in Cyberspace

A. “Although many states have enacted modern legislation governing and allowing open meeting requirements, the Massachusetts Condominium Act, G.L. c. 183A, does not provide for an open board,” says Jake Marcus, partner at Allcock & Marcus in Braintree, Massachusetts.  “Namely, in Florida, a board generally cannot circumvent the ‘sunshine laws’ by using ‘remote only’ meetings. 

“In any event, the trend in many jurisdictions is to encourage transparency and accountability related to any board action, except in the event the meeting must be closed due to confidentiality, such as meetings with legal counsel regarding litigation, meetings regarding personnel situations, discussion of specific unit owners who are delinquent in the payment of common expenses, etc.  In theory, these limited exceptions could be held as an executive session that is closed and done so remotely, unless the governing documents specifically require the executive sessions to occur at a defined place. 

“Nonetheless, it is good practice for boards to have an open meeting if there is no exception and we would encourage holding open meetings as common practices to ensure community members are kept appraised of association happenings.  Even more, this dispels any community concerns as to what is occurring within the association.

“We recommend looking into your jurisdiction’s condominium act and open meeting laws.

“For example, in Massachusetts. the recently enacted section 24 of the Condominium Act 183A (effective August 2024) adds on parameters related to electronic meetings. The provision specifically seeks to allow for an ‘interactive’ process, but this could be an example where the statute does not completely meet the reality of the situation.  It’s mentioned that ‘all participants shall be able to simultaneously communicate with each other during the meeting’; the governing body shall take reasonable measures to ensure that unit owners can participate fully, including by reading or hearing the proceedings and posing questions or comments’; ‘other interactive electronic communication process’, but it’s unclear how the reality will shake out as far as interactivity. As to meeting minutes or records of the association, these should be recorded and would be open to inspection.

“In Florida, HB 1021 seeks a substantial overhaul of the Florida Condominium Act (effective July 2024). The overhaul of Florida’s Act Chapter 718 seeks a panoply of changes to encourage transparency related to the association decision-making process including (1) the requirement of an association with more than 10 units to have board meetings not less than quarterly (four meetings per year); (2) meeting agendas must include an opportunity for members to ask questions of the board; (3) Members must be provided with the opportunity to speak at the meetings on all designated agenda items; (4) if an agenda item relates to the approval of a contract for goods or services, a copy of the contract must be provided; (5) new heightened board member education requirements; (6) increased safeguards to ensure proper association record retention; (7) associations with 100 or more parcels must maintain a website.

“Whether you are in Massachusetts or Florida, or somewhere in between, it is also important to review your state’s open meeting law for jurisdictions related to ‘sunshine laws’, and/or governing document verbiage that would require in person meetings. And what must be conveyed to owners or recorded in the association’s official records. States that have open meetings for municipal boards refer to them as ‘sunshine laws,’ where generally discussions are held in the open.

“Unless the correspondence is one that is protected by confidentiality, board members should be cognizant of the old adage, ‘everything you do or say could end up in the newspaper [or in the association’s  minutes],’ when making decisions.”