LAKEWOOD VILLAGE CONDOMINIUM ASSOCIATION, INC.,

vs. LAUREN ROSEN BERACHA

LAKEWOOD VILLAGE CONDOMINIUM ASSOCIATION, INC., a Florida 

not-for-profit corporation,

Plaintiff,

vs.

LAUREN ROSEN BERACHA,

Defendant.

___________________________________________/

IN THE COUNTY COURT IN AND FOR

BROWARD COUNTY, FLORIDA

 

CASE NO: 07-006293 COWE (80)

FINAL .JUDGMENT OF DECLARATORY RELIEF

 

THIS CAUSE coming to be heard at final hearing on May 31, 2007, and, upon taking the

testimony of witnesses and hearing the argument of counsel, the Court finds that

 

In late 2006, Plaintiff, LAKEWOOD VILLAGE CONDOMINIUM ASSOCIATION, INC.,

hereinafter "Lakewood Village," provided its members with its first notice of annual members

meeting and election of board of directors. At that time, no provision of the bylaws for Lakewood

Village prohibited multiple owners from the same condominium unit from serving on the board of

directors at the same time. The annual meeting and election was scheduled for March 21, 2007.

 

Sometime in January 2007, Defendant, LAUREN ROSEN BERACHA, hereinafter "Mrs.

Beracha," timely and properly announced her intention to run for the board of directors of Lakewood

Village. At the same time, her husband, Phil Beracha, hereinafter "Mr. Beracha," not a party to this

action, also timely and properly announced his intention to run for the board of directors of

Lakewood Village. Mr. and Mrs. Beracha own a single condominium unit at Lakewood Village.

Both are listed on the legal title of record for the unit and are considered unit owners. Florida Statute

718.103(28) .

 

On February 13, 2007, after both Mr. and Mrs. Beracha had announced their respective intentions to run for the board of directors at the same time, the three-member board of directors of Lakewood Village amended Section 5.01.01 of the Bylaws of Lakewood Village to state the following, with the underlined text added to the existing test:

The affairs of the Association shall be managed by the Board of not less than three nor more than seven directors. So long as the Developer is entitled to appoint any director pursuant to the Articles, the number of directors will be determined, and may be changed from time to time, by the Developer by written notice to the Board. After the Developer is no longer entitled to appoint any director, the number of directors may be changed at any meeting where the members

are to elect any directors (i) by the then existing Board, if prior to such meeting of the members the Board votes to change the number of directors and such change

is indicated in the notice of the meeting sent to the members, or (ii) by the members at the meeting prior to the election of directors. If the number of directors on the Board is not changed, then the number of directors shall be the same as the number on the Board prior to such meeting (Plus any unfilled vacancies created by the death, resignation or removal of a director). In any event there shall always be an oc number of directors. 

 

Notwithstanding anything to the contrary herein there shall

only be one (1) director serving from any one(1)unit at any time. In the event that more than one 1 owner of a unit is elected to the Board at the same time, one of those owners, preferably the one who received the lower number of votes, if that is ascertainable, shall be deemed to have resigned effective immediately. The Board shall than (sic) appoint to fill the remaining vacancy, as elsewhere provided herein.

At the election held on March 21, 2007, Mr. Beracha and Mrs. Beracha were among the topthree vote-getters. The top five vote-getters were Phil Beracha (137votes) Robert Cohee (135votes) Lauren Rosen Beracha (129 votes) Nick Rosa (33 votes) and Richard Rijo (31 votes).Despite the provision of the By-laws as amended, the Defedant, Beracha, failed to remove herselifrom the administration of the Association. 

Lakewood Village has filed this action for declaratory relief to determine (1) the validity of the amendment of Section 5.01.01 of the Bylaws of Lakewood Village and (2) whether Mrs. Beracha may properly serve on the board of directors. The Court has jurisdiction of this matter pursuant to

Chapter 86 of the Florida Statutes. 

Lakewood Village operates a condominium association pursuant to its declaration, articles

of incorporation, and bylaws. Florida Statute 718.112(1 )(a). The bylaws must state the manner in

which officers and directors are elected. Florida Statute 718.112(2)( d); Florida Administrative

Code R. 618-23.0021. 

All unit owners, except convicted felons who have not had their civil rights restored, are

entitled to run for the board of directors of a condominium association. Florida Statute

718.112(2)( d). All parties to this action concede that Mrs. Beracha is not a convicted felon. 

It follows, then, that a statutory eligibility to run for the board of directors of a condominium

association implicates an eligibility to thereafter serve on that board of directors once elected. The

intent of the legislature to open the eligibility requirements for condominium association directorship

would be thwarted by an interpretation that the legislature only wanted to open eligibility to

candidacy, but not board membership. 

The legislature's intent in this regard is evident from the history of Florida Statute

718.112(2)(d). In 1998, the legislature added the following language to Florida Statute

718.112(2)(d): 

In order to be eligible for board membership, a person must meet the requirements set forth in the declaration.

Ch. 1998-322, Laws of Florida (1998). 

 

Shortly thereafter, the Florida Division of Land Sales, Condominiums, and Mobile Homes

("the division") construed the 1998 amendment of Florida Statute 718.112(2)(d) to permit a

declaration to restrict board membership to those unit owners \\'ho lived at the condominium. In

2000, the legislature repealed the 1998 amendment, thereby deleting the above language. Ch. 2000-

302, 53, Laws of Florida (2000). The legislative bill analysis for the 2000 amendment explains:

Section 53 - Amends s. 718.1 12(2)(d), F.S., regarding unit owner meetings; s. 718.112(2)( e), F.S., relating to budget meetings; and s. 718.112(2)(f), F.S., relating to the annual budget.

Present Situation: In 1998 the following sentence was added to s. 718.112(2)( d) 1., F.S.:

"In order to be eligible for board membership, a person must meet the requirements set forth in the declaration." This sentence was added pursuant to CS/HB 3321, ch. 98-322, L.O.F. The division construed the sentence to allow declarations to contain a requirement that a person must be a resident of the condominium in order to become a member of the board. That sentence was not intended to allow a residency requirement; it was simply intended to support other requirements set forth in the declaration. This intent is clear based upon the previous sentence in that subparagraph, which states that "any unit owner" desiring to be a candidate is eligible. The pertinent provision in the 1998 legislation added language that was intended to prevent convicted felons (who did not have their rights restored) from serving on condominium association boards.

Effect of Proposed Changes: Removes the sentence which was added in 1998, which the division construed to allow residency requirements with regard to membership on the board, and deletes superfluous language.

 

Fla. HR Comm. Real Prop. & Prob., Final Staff Analysis for CS/CSHB 593, 1st Engrossed, at 38 (July 26, 2000) (footnotes omitted). 

 

The above legislative analysis evinces a clear intent to prohibit any restriction as to

condominium board membership that conflicts with the provisions of Florida Statute 718.112(2)( d),

which provides, in relevant part: 

1 .... Any unit owner desiring to be a candidate for board membership shall comply with subparagraph 3. A person who has been convicted of any felony by any court of record in the United States and who has not had his or her right to vote restored pursuant to law in the jurisdiction of his or her residence is not eligible for board membership ....

* * * 

3.             Any unit owner or other eligible person desiring to be a candidate for the board must give written notice to the association not less that 40 days before a scheduled election. 

 

Condominiums are created and governed by statute. Suntide Condo Assoc. Inc. V.

Division of Fla. Land Sales and Condominiums. Dept of Business and Professional Regulation 463 So.2d 314 (Fla.1st DCA 1984). While Lakewood Village is also a not for profit corporation under Chapter 617 of the Florida Statutes, its authority to operate under general corporate law or the bylaws of the association is "expressly limited or restricted" by the provisions of Chapter 718. Florida Statute 718.111(2). Therefore, where Florida Statue 718.112(2)(d) expressly limits a condominium association's authority to restrict board membership, such membership may not be restricted under any provision contained in Chapter 617 of the bylaws

Florida Statutes Chapter 718 does not make specific reference to the eligibility for anyone to serve on the Board of Directors. However, the Court finds that the eligibility to run for the Board of Directors properly extends to and includes serving on the Board of Directors. Accordingly., the governing documents of Lakewood Village may not limit in any manner the legibility for unit owners or other qualified individuals to serve on the Board of Directors. Any attempt to limit or qualify the eligibility for unit owners or other qualified individuals to serve on the Board of Directors is in direct conflict with Florida Statute 718.1l2(2)(d).

 There are no decisions of any Florida Court on this issue and the Court is treating this issue as one of first impression. The resulting language of Florida Statute 718.l12(2)(d) is that all unit owners, other than convicted felons who have not had their civil rights restored, are eligible to run for and serve on the board of directors of a condominium association, provided they give the association not less that 40 days written notice of their desire to run as a candidate for the board. See In re:Petition for Declaratory Statement, Grubbs, DS 2005-013; Case No. 2005-01-6727 (Cochran, May 20,2005). In re: Petition for Declaratory Statement, Hollybrook Golf and Tennis Club Condo. Inc. Case NO. 961.0189 (Ellzey, September 18, 1996): In re: Petition for Arb. Schultz v.Lacosta Beach Club Resort Condo Assoc. Inc.: Case No. 2003-08-3347 (Scheuerman, November 21, 2003). in re: Petition for Declaratory Statement Maison Grande Condominium Association, Inc.

DS 2006.043; Case No, 2006-05-1291 (Cochran, November 27, 2006). (While this Court notes that arbitration rulings by the division are not binding upon this Court, and the divisions' declaratory statements are not intended to have prospective application beyond the parties involved, this Court has formed an independent agreement with the decisions of the division in those matters and cites to them herein). 

 

Therefore:

  

IT IS ORDERED AND ADJUDGED that the amendment of Section 5.01.01 of the Bylaws

of Lakewood Village on February 13, 2007, is in conflict with the requirements of Florida Statute 718.112(2)(d) and is invalid, a Condominium association may not prohibit more than one owner of a unit from simultaneously serving on its Board. Defendant Lauren Rosen Baracha, having been validly elected to the Board of Directors for Plaintiff, Lakewood Village Condominium Association, Inc. may immediately assume her position of the board. While it may not always be the wisest decision to have one family with multiple votes on a condominium association board. However, this issue

is for the legislature and the voters of each association. 

IT IS FURTHER ORDERED AND ADJUDGES that, given the large number of citizens in the State of Florida who reside in or own condominium units, and the fact that none of the States appellate courts has yet to address the first issue presented in the matter, the following question shall be certified to the Fourth District Court of Appeal as a matter of great public importance: 

MAY A CONDOMINIUM ASSOCIATION, IN ITS GOVERNING DOCUMENTS, SET FORTH ELIGIBILITY LIMITATIONS OR QUALIFICATIONS FOR SERVICE ON THE BOARD OF DIRECTORS BY UNIT OWNERS OR OTHER QUALIFIED INDIVIDUALS OTHERWISE ALLOWED BY SECTION 718.112(2)(d) F.S. SPECIFICALLY PROHIBITING MORE THAN ONE OWNER OF A UNIT FROM SIMULTANEOUSLY SERVING ON ITS BOARD OF DIRECTORS. 

 

    DONE AND ORDERED at Plantation, Broward County, Florida this  26      day of June, 2007. 

cc: Mark M. Heinish, Esq.

Deborah Sugerman, Esq. 

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