It may surprise readers to learn that the answer varies by state.
By Deborah Goonan, Independent American Communities
One of the goals of IAC is to make my readers aware that corporate and non-profit laws pertaining to association-governed communities vary considerably by state.
Put another way, since association-governed, common interest communities are legally recognized as private organizations, the U.S. has no federal statutes pertaining to proper governance.
The best way to illustrate this fact is by example. Let’s look at how two different states handle an Association member’s right to attend meetings of the board, and to obtain access written minutes of board meetings.
Florida vs. New York
Let’s assume you happen to own a condo in Florida and a co-op apartment in New York.
Florida Statute requires all board meetings to be open to condo, co-op, and HOA members. Although the board may adjourn to executive session to discuss certain highly confidential matters, such as litigation or evaluation of competitive contract bids, all motions and votes must still take place during open sessions of a board meeting. Additionally, Floridian owners and shareholders are entitled to view or to obtain a copy of meeting minutes after they have been approved by the board. (See FL statutes 718.112, 719.106, 720.303)
But in New York, homeowners, condo owners, and cooperative shareholders have no explicit legal right to attend board meetings, nor are they guaranteed the right to view meeting minutes, according to a New York attorney, quoted in The Cooperator, NY edition.
“Shareholders have, in some respects, unreasonable expectations,” admits Phyllis H. Weisberg, a managing partner at the law firm of Montgomery McCracken Walker & Rhoads LLP, which has offices in New Jersey and New York. “For example, shareholders seem to think that they can see board minutes, but they don’t have an automatic right to do so. I know that some boards distribute them, but most don’t, and they shouldn’t be doing so. Because if the minutes indicate that Jane Doe is in dire financial straits and wants to borrow money, or work out a deal on her non-payment proceeding, that’s something confidential that she wouldn’t want to broadcast around. There are a lot of reasons that those minutes don’t need to be made available. And sometimes, when a court mandates for whatever reason that they are made available, they will redact information that could prove embarrassing or prejudicial or whatnot.”
(Source: How Transparent Should Boards Be
Understanding What Information to Provide Owners and Shareholders, The Cooperator, New York, BY MIKE ODENTHAL 9 NOVEMBER 2017)
Sure enough, in New York, co-op board meetings are subject to Corporate Law, specifically BCL 624, as is explained in excerpt from Habitat Magazine, in this FAQ.
A. Co-ops, in New York, are governed by the Business Corporation Law. BCL 624(a) requires corporations to keep meeting minutes. BCL 624(b) requires corporations to allow shareholders to review two categories of corporate documents: “minutes of the proceedings of its shareholders and record [i.e., list] of shareholders…”
Notice the language: The law mandates review only of minutes of shareholders’ meetings — generally speaking, the year’s annual meeting for election of directors.
Source: FAQ Check: What Are Co-op Owners’ Rights to See Board-Meeting Minutes? (Habitat)
So, by extension, if meeting minutes are generally off-limits unless compelled by the court and in redacted format, it’s clear that shareholders of a co-op are not invited to attend board meetings.
Similarly, New York condo and homeowners’ associations are governed by Nonprofit Corporate Law (NPCL) which does not require either open meetings or open access to minutes of those meetings. (See NPCL 710, NPCL 711)
The NY attorneys consulted in the two articles linked above do note that some boards of association-governed communities in New York choose to operate with transparency, providing access to bare bones or redacted minutes of board meetings. However, most do not. And why would they, if their HOA attorneys publicly discourage sharing this information with owners and shareholders?
On the opposite end of the spectrum, although Florida law requires open access to board meetings as well as minutes, weak enforcement of state law results in a great deal of noncompliance. Association boards continue to conduct closed board meetings and often fail to make meeting minutes available for inspection by members.
Proving the point that, no matter what may be required by statute, open access laws must be easily and swiftly enforced in order to ensure widespread transparency in association-governed, common interest communities.