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An
Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
Updated August 14, 2017
One
of the hottest topics in Florida's condominiums: Qualifications and
eligibility of board members. In the last few years many
legislative bills addressed
this issue, overturning older Declaratory Statements and Arbitration
Rulings.
In
former times bylaws often eliminated owners from serving on the board --
bylaws often passed to keep sitting boards (the clique) in office and eliminate
"unwanted" volunteers.
One
of the favorite restrictions added to bylaws was the eligibility
requirement of residence of 9 or more months a year.
Florida
Statutes 718 contains a multitude of provisions, regulating eligibility and
qualifications of owners serving on condo boards.
One
of the continuously reappearing arguments about eligibility are so-called
residency
requirements of 9 (nine) months or more a year, a provision that was
fairly common in condo bylaws in former years. A Declaratory Statement
issued by the Division in 1998 [DS98150]
still allowed the bylaws to prevail, but that changed in 2006, when the
Division issued a Declaratory Statement [DS
2006-051291] that clearly
reversed that earlier statement. With the technology available now, it
actually makes no more sense to eliminate volunteers just because they are
not permanently on location.
Florida's
legislature added quite a few eligibility restrictions and qualification
requirements to the statutes. Here are the provisions dealing with these
issues:
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STAGGERED
TERMS: NO MORE THAN 2 YEARS, IF BYLAWS ALLOW
FS 718.112(2)(d) If the bylaws
permit staggered terms of no more than 2 years and upon approval of a
majority of the total voting interests, the association board members
may serve 2-year staggered terms.
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TERM-LIMITS:
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The language isn’t
clear, but it sure looks like the legislature intended to create
8-year term limits for board members – same as the term-limit for
the Florida Legislature.
This important sentence (creating term
limits) was added in 2017 by
HB 1237:
FS 718.112(2)(d)2.
A board member may not serve more than four
consecutive 2-year terms, unless approved by an affirmative vote of
two-thirds of the total voting interests of the association or
unless there are not enough eligible candidates to fill the
vacancies on the board at the time of the vacancy.
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CO-OWNERS
SERVE TOGETHER: ONLY UNDER SPECIAL
CIRCUMSTANCES
FS 718.112(2)(d) In a condominium association of more
than 10 units or in a condominium association that does not include
timeshare units or timeshare interests, coowners of a unit may not
serve as members of the board of directors at the same time unless
they own more than one unit or unless there are not enough eligible
candidates to fill the vacancies on the board at the time of the
vacancy.
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SUSPENSION
BY DIVISION: [FS 718.501(1)(d)
6.]
FS 718.112(2)(d) A person who has been suspended or
removed by the division under this chapter is not eligible for board
membership.
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ASSESSMENT
DELINQUENCY: [FS
718.112(2)(n)]
FS 718.112(2)(d)
A person who is delinquent in the
payment of any fee, fine, or special or regular assessment as provided
in paragraph (n), is not eligible for board membership.
FS 718.112(2)(n) Director
or officer delinquencies.-- A director or officer more than 90 days
delinquent in the payment of any monetary obligation due the
association shall be deemed to have abandoned the office, creating a
vacancy in the office to be filled according to law.
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CONVICTED
FELON:
FS 718.112(2)(d) A person who has been convicted of
any felony in this state or in a United States District or Territorial
Court, or who has been convicted of any offense in another
jurisdiction that would be considered a felony if committed in this
state, is not eligible for board membership unless such felon’s
civil rights have been restored for at least 5 years as of the date on
which such person seeks election to the board.
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DIRECTOR
OR OFFICER OFFENSES:
FS 718.112(2)(o)
Director or officer offenses. — A director or officer charged by
information or indictment with a felony theft or embezzlement offense
involving the association’s funds or property must be removed from
office, creating a vacancy in the office to be filled according to law
until the end of the period of the suspension or the end of the
director’s term of office, whichever occurs first. While such
director or officer has such criminal charge pending, he or she may
not be appointed or elected to a position as a director or officer.
However, if should the charges are be resolved without a finding of
guilt, the director or officer shall be reinstated for the remainder
of his or her term of office, if any.
ADDED QUALIFICATION:
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BOARD
MEMBER EDUCATION QUALIFICATION: FS
18.112(2)(d) 3.b. Within 90 days after being elected or appointed
to the board, each newly elected or appointed director shall certify
in writing to the secretary of the association that he or she has read
the association’s declaration of condominium, articles of
incorporation, bylaws, and current written policies; that he or she
will work to uphold such documents and policies to the best of his or
her ability; and that he or she will faithfully discharge his or her
fiduciary responsibility to the association’s members. In lieu of
this written
certification, the newly elected or appointed director may
submit a certificate of satisfactory completion of the educational
curriculum administered by a division-approved condominium education
provider. A director who fails to timely file the written
certification or educational certificate is suspended from service on
the board until he or she complies with this sub subparagraph. The
board may temporarily fill the vacancy during the period of
suspension. The secretary shall cause the association to retain a
director’s written certification or educational certificate for
inspection by the members for 5 years after a director’s election.
The
RULE OF THUMB: Everybody listed as ineligible in the
statutes is out, everybody else is in -- if elected or appointed!
Maison Grande Condominium Assoc., Inc.
[Declaratory Statement DS 2006-051291; November 27, 2006]
Golden
Lakes Village Condominium Association "A", Inc
[Declaratory Statement DS98150;
December 21, 1998]
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