Law Stack Exchange is a question and answer site for legal professionals, students, and others with experience or interest in law. It only takes a minute to sign up.
Sign up to join this community
Does Florida Condo Law FS718 or any relevant statute provide guidance as to how to determine the minimum number of Florida condo board directors must be present for a meeting if a 5 seat board has enough board members for a meeting?
Case 1: Assume all seats are filled
Case 2: Assume 4 of 5 seats are filled: one is vacant
Case 3: Assume case 2, however, only 3 directors are able to vote on a single agenda meeting as the fourth is in violation and ineligible to vote. 5th seat is vacant
Short Answer
Does statute prescribe algorithm for calculating quorum?
No, but it does provide a default and minimum quorum for board meetings (indirectly through a non-condo statute), which is sufficient to resolve the questions asked for a five member board, in most cases, although the bylaws could set a higher quorum than the minimum or default requirement which are the same in this case.
A Florida HOA must be either a for profit corporation or a non-profit corporation. Either way, in all three cases, three members constitutes the minimum quorum for the Board. Presence could be virtual (e.g. by Zoom or Conference Call) rather than in person, and in some case, proxy voting is allowed under very specific limitations and circumstances not discussed at length below.
A majority of those present, when there is quorum, must vote in favor to pass an action, unless the bylaws or declarations or other law provides otherwise with respect to a specific vote. When four or five people are present, that means three votes in favor. When three people are present, that means two votes in favor.
There are provisions for a board lacking a quorum to fill vacancies prior to a unit member's election if the bylaws do not forbid this, or to have a court appoint a receiver if no quorum can be secured until one is secured.
Long Answer
There are specific mandatory provisions in F.S. 718.112(2) for bylaws, and HOAs are required to be formed under the Florida For Profit Corporation or Florida Non-Profit Corporation Statutes both of which have default quorum provisions in the bylaws do not so provide under F..S. 718.111(1).
The default rule for members meetings is F.S. 718.112(2)(b)(1) which provides that:
(b) Quorum; voting requirements; proxies.—
1. Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members is a majority of the voting interests. Unless otherwise provided in this chapter or in the declaration, articles of incorporation, or bylaws, and except as provided in subparagraph (d)4., decisions shall be made by a majority of the voting interests represented at a meeting at which a quorum is present. . . .
4. A member of the board of administration or a committee may submit in writing his or her agreement or disagreement with any action taken at a meeting that the member did not attend. This agreement or disagreement may not be used as a vote for or against the action taken or to create a quorum.
5. A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting.
Proxies where permitted by statute, however, may be used to meet a quorum.
The provision of board meetings is mostly at F.S. 718.112(2)(c) which provides in pertinent part:
(c) Board of administration meetings.—Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting. The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.
And goes on to discuss proxy voting. Voting rights also have to be discussed in the Declarations which may or may not cover a director quorum.
Board vacancies are discussed at length in F.S. 718.112(2)(d). Vacancies may be filled by existing board members without a quorum until the next unit owner's meeting unless the bylaws provide otherwise.
9. Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must conform to sub-subparagraph 4.a. unless the association governs 10 units or fewer and has opted out of the statutory election process, in which case the bylaws of the association control. Unless otherwise provided in the bylaws, a board member appointed or elected under this section shall fill the vacancy for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by paragraph (j) and rules adopted by the division.
10. This chapter does not limit the use of general or limited proxies, require the use of general or limited proxies, or require the use of a written ballot or voting machine for any agenda item or election at any meeting of a timeshare condominium association or nonresidential condominium association. Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an association of 10 or fewer units may, by affirmative vote of a majority of the total voting interests, provide for different voting and election procedures in its bylaws, which may be by a proxy specifically delineating the different voting and election procedures. The different voting and election procedures may provide for elections to be conducted by limited or general proxy.
Also pertinent is this section:
718.1124 Failure to fill vacancies on board of administration sufficient to constitute a quorum; appointment of receiver upon petition of unit owner.—
(1) If an association fails to fill vacancies on the board of administration sufficient to constitute a quorum in accordance with the bylaws, any unit owner may give notice of his or her intent to apply to the circuit court within whose jurisdiction the condominium lies for the appointment of a receiver to manage the affairs of the association.
The Florida Non-Profit Corporation Act provides the default rules for quorum in non-profits which are by far the most common way to organize an HOA. It states in pertinent part that:
617.0824 Quorum and voting.—
(1) Unless the articles of incorporation or the bylaws require a different number, a quorum of a board of directors consists of a majority of the number of directors prescribed by the articles of incorporation or the bylaws. Directors younger than 18 years of age may not be counted toward a quorum.
(2) The articles of incorporation may authorize a quorum of a board of directors to consist of less than a majority but no fewer than one-third of the prescribed number of directors determined under the articles of incorporation or the bylaws.
(3) If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present is the act of the board of directors unless the articles of incorporation or the bylaws require the vote of a greater number of directors.
(4) A director of a corporation who is present at a meeting of the board of directors or a committee of the board of directors when corporate action is taken is deemed to have assented to the action taken unless:
(a) The director objects, at the beginning of the meeting or promptly upon his or her arrival, to holding the meeting or transacting specified affairs at the meeting; or
(b) The director votes against or abstains from the action taken.
So, in the usual case, a five member board has a quorum of at least three members since it cannot be less than one-third under state law if it is a non-profit rather than a for profit HOA. This would seem to be true even if there are vacancies since the "prescribed" size of the board is still five members.
The same rule applies in for profit Florida corporations.
Many bylaws incorporate by reference, Robert's Rules of Order Revised which provides for quorum in Section 64 which states (in pertinent part), which reaches the same conclusion:
- A Quorum of an assembly is such a number as must be present in order that business can be legally transacted. The quorum refers to the number present, not to the number voting. The quorum of a mass meeting is the number present at the time, as they constitute the membership at that time. The quorum of a body of delegates, unless the by-laws provide for a smaller quorum, is a majority of the number enrolled as attending the convention, not those appointed. The quorum of any other deliberative assembly with an enrolled membership (unless the by-laws provide for a smaller quorum) is a majority of all the members. In the case, however, of a society, like many religious ones, where there are no annual dues, and where membership is for life (unless it is transferred or the names are struck from the roll by a vote of the society) the register of members is not reliable as a list of the bona fide members of the society, and in many such societies it would be impossible to have present at a business meeting a majority of those enrolled as members. Where such societies have no by-law establishing a quorum, the quorum consists of those who attend the meeting, provided it is either a stated meeting or one that has been properly called.
In all ordinary societies the by-laws should provide for a quorum as large as can be depended upon for being present at all meetings when the weather is not exceptionally bad. In such an assembly the chairman should not take the chair until a quorum is present, or there is no prospect of there being a quorum. The only business that can be transacted in the absence of a quorum is to take measures to obtain a quorum, to fix the time to which to-adjourn, and to adjourn, or to take a recess. Unanimous consent cannot be given when a quorum is not present, and a notice given then is not valid. In the case of an annual meeting, where certain business for the year, as the election of officers, must be attended to during the session, the meeting should fix a time for an adjourned meeting and then adjourn.
In an assembly that has the power to compel the attendance of its members, if a quorum is not present at the appointed hour, the chairman should wait a few minutes before taking the chair. In the absence of a quorum such an assembly may order a call of the house [41] and thus compel attendance of absentees, or it may adjourn, providing for an adjourned meeting if it pleases.
In committee of the whole the quorum is the same as in the assembly; if it finds itself without a quorum it can do nothing but rise and report to the assembly, which then adjourns. In any other committee the majority is a quorum, unless the assembly order otherwise, and it must wait for a quorum before proceeding to business. Boards of trustees, managers, directors, etc., are on the same footing as committees as regards a quorum. Their power is delegated to them as a body, and their quorum, or what number shall be present, in order that they may act as a board or committee, cannot be determined by them, unless so provided in the by-laws.
The size of the quorum is a matter for the by-laws. Practically, it must be between 1 and everyone.
