CONDOMINIUM BOARD ELECTIONS & QUALIFICATIONS
This is the third of several articles that will specifically sddress laws adopted by the Florida Legislature this year. This issue will summarize the changes made to sections 718.112(2)(d) and 718.303(3), Florida Statutes, which became effective July 1, 2010, concerning condominium elections and board qualifications.
1. Insufficient Number of Eligible Members Running for Election
Pursuant to the new amendment language of section 718.112(2)(d)1, if the number of board members whose terms have expired is greater than the number of eligible members showing interest in or demonstrating an intention to run for the vacant positions, each board member whose term has expired is now eligible for reappointment to the board and does not need to stand for reelection. Previously under this subsection, if there were not enough members running for vacant positions, a board member whose term had expired would be automatically reappointed to the board.
2. Coowners Serving on the Board
Also according to amended section 718.112(2)(d)1, in condominiums having more than 10 units, coowners of a unit may now serve as members of the board if they own more than one unit or if there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy. Prior to the amendment, there was a blanket prohibition against coowners serving on a board of directors at the same time.
3. Non-eligibility for Board Membership
Pursuant to the new amendment, a person who is delinquent more than ninety (90) days in paying any fee, fine, or special or regular assessment to the association, is not eligible for board membership. The Division of Florida Condominiums has determined that this does not mean, however, that a person may not run for office if he/she is delinquent more than 90 days in paying any fee, fine or assessment to the association. This conclusion is based upon the Division’s rationale that any number of events might occur prior to a person actually taking office, including, a candidate withdrawing his/her name from consideration prior to the election; a candidate not being elected to the Board; the election itself being cancelled; the candidate paying money owed prior to the election; etc.
Therefore, based upon the Division’s interpretation of this section, if a person who is delinquent more than 90 days in the payment of any fee, fine, or assessment to the Association wants to run for a vacant Board position, he/she should be allowed to do so. If that delinquent candidate is elected and still has not paid the amount owed to the Association, upon being elected he/she would be deemed to have abandoned the office pursuant to section 718.112(2)(n), and the Association would have to fill that vacancy in the same manner it would fill any other Board vacancy occurring prior to the end of a director’s term.
4. New Certification Requirement
The pre-election requirement of a candidate certification form has been removed from section 718.112(2)(d)3. Instead, there is now a requirement that within 90 days after being elected or appointed to the board, each newly elected or appointed director shall certify in writing that he/she has (a) read the governing documents and current written policies; (b) that he/she will work to uphold such documents and policies to the best of his/her ability; and (c) that he/she will faithfully discharge his/her fiduciary responsibility to the association’s members.
- In lieu of this new written certification, the director may submit a certificate of satisfactory completion of the education curriculum administered by a division-approved condominium education provider.
- A director who fails to timely file the written certification or educational certificate is suspended until completing the requirement.
- The board may temporarily fill the vacant position during the period of suspension.
- The association must retain the written certification or educational certificate for inspection by the members for 5 years after the director’s election. However, failure to have such written certification or educational certificate does not affect the validity of any board action.
5. Suspension of Voting Rights
Connected directly with elections are the voting rights of members, and new language was added to section 718.303 dealing with the suspension of voting rights. New subsection (5) now provides that an association may suspend the voting rights of a member who is more than ninety (90) days delinquent in the payment of any monetary obligation owed to the association. Such a suspension would need to be imposed by the Board, and the suspension would end only upon full payment of all obligations currently due or overdue the association.
The firm of Taylor & Carls, P.A., with offices located in Altamonte Springs, Clearwater and Palm Coast, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition was prepared by Sara K. Wilson, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice. The opinions expressed herein are as of the date hereof, and this law firm undertakes no obligation to advise the Association of subsequent changes in the law.
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