Depending on the size of the community, sending notices on behalf of an association client can be an expensive proposition. The use of e-mail can simplify that task, make it more affordable, and allow you to deliver notices with much greater efficiency and speed. However, if your association intends to use email, there are a few questions you may be asking:
(1) When can an association use a homeowner’s email address for official association notices?
(2) Can a homeowner’s email address be discovered by one making an official records request?
(3) Can we use a homeowner’s email address for informational purposes that are not official notifications?
Under Florida Statute 720.303(4) & 718.111 12(a), the use of a homeowner’s email address to deliver official notice of an Association meeting or other official notice may ONLY be used if the homeowner CONSENTS to receiving notice via electronic transmission. The mere fact that the association has collected an email address of an association member, possibly because the homeowner contacted a manager in that manner on another issue, is not sufficient to constitute consent for the association’s use that email address for the purpose of providing official notice. Consent by a homeowner should be explicit and should be documented, with that documentation retained as an official record of the association.
It must be recognized that not all information in the hands of the association is an official record. The association may have knowledge of a homeowners e-mail address, but that in itself does not make it an official record. If the homeowner consents to use of their email address for Association official communications then the homeowner’s email address does become part of the Association’s official records and subject to disclosure to a party who makes an official records request. If consent to use their email address is revoked by a homeowner, then that homeowner’s email address must be removed from the association official records.
Consent is required to use a homeowner’s email addresses for official association notices, but what about using the email address to send an email that is merely informational? Florida Statutes do not specifically address this situation, and one can conclude that such a use would not be prohibited. As an example, if a hurricane is threatening the area in which the community is located and the management company sends an email to inform homeowners about local resources and tips for preparing their home. An informational email unrelated to the operation of the association is not the type of notice that is being addressed throughout Sections 720.303 & 718.111. As such, it is reasonable to conclude that use of the email address would be not be prohibited, even where consent of the homeowner was not obtained.
David M. Felice, Esq.