Executive Session - Fines and Foreclosure

Started by GeorgeS21 • 8 replies • 698 views

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GeorgeS21 (Florida)
Posts: 3,808

Posted:

Hi All,

I'm the president of 314 SFH subdivision.

Continuing to apply process to our Board activities.

We have a meeting coming up that will entail discussions of:
1. Foreclosure for failure to pay assessments - owner will reportedly be there to plead their case (we will likely waive some fees and establish a payment plan - their last chance)
2. Fines to be levied by the Board - owners could be there (but would still want this in ES even if they aren't there)

I would like to conduct both of these components in Executive Session. Is this appropriate?

I would clear the room except for Board members and the property manager in each case, allowing only the property owner to attend their respective portion.

Tips and advice always welcome. Don't need discussion of whether or not there should be fines, nor whether a POA should engage in foreclosure (I am trying to avoid the foreclosure).

As always, thanks.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I say any financial discussions with, or even about, an owner should/must be done in private as in Executive Session.

KerryL1 (California)
Posts: 14,550

Posted:

In FL, must your adjourn form an open meeting to an executive session? Can't you schedule executive sessions separately from an open meeting?

Yes, these both should be in Ex. Sess. if permitted by FL law as in many other states.

SheliaH (Indiana)
Posts: 6,964

Posted:

John and Kerry gave great advice. We didn't have a lot of executive sessions - the few I remember were usually held after a regular board meeting and we'd send everyone home, including the property manager. You can have him or her attend - we would send ours an update on things we wanted her to do.

Here's a link to a good article on executive sessions with tips you might use - in fact, if you really like them, it may be helpful to adopt them in a board resolution so people will understand when executive sessions will be done. If necessary, review your proposed resolution with your association attorney to ensure what you're doing is in line with your documents:

https://www.lawoforderblog.com/2017/08/shhh-secret-no-one-tells-executive-session/

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Thanks Shelia,

Was planning on doing ES almost exactly as noted in the article.

Wish didn’t have to do it at all, but ...

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By GeorgeS21 on 11/12/2019 8:18 AM
I would like to conduct both of these components in Executive Session. Is this appropriate?

Is this your non-FS 720 voluntary HOA, George? In an HOA that's under FS 720 both of those things must be done at an open board meeting.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Hi Geno,

No, this is a 720 covered POA.

I've reread, again, and while I agree we should not discuss the fines in executive session, there is some provision for discussing whether or not to engage in a foreclosure.

HOWEVER, apparently the POA attorney must be present to use the proposed litigation as a reason for ES ...

Given our attorney will not be present, it looks like both the fine process and the discussion of whether to continue to foreclosure are to held in open session?

GenoS (Florida)
Posts: 4,276

Posted:

That's what I would think. You can be creative to the point that you can discuss what you need to discuss without identifying the problem owner by name. We haven't had to lien or threaten forclosure since I've been here, but surviving minutes from the 2009-2011 timeframe show liens were all discussed at open board meetings.

And fines are definitely open board meeting material. In fact, the board can't simply levy a fine on its own. There has to be a fining committee that gives a thumbs up or a thumbs down on any fine and those meetings should be open, too. The idea that a board can levy a fine that is then subject to the approval (or rejection) of a committee doesn't sit well with some people. They think the board should have the final say. While I agree in principal, we have to follow the law.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Agree.

WRT fining, we are also going down that path for the first time. We have set up an independent fines committee, I met with attorney and was advised the Fines Committee meets only after at least 14 days notice following the Board fining.

The attorney was also clear that Florida HOA attorneys read the law to mean the FC must meet regardless of the presence or desire by the fined to be present.

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