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An
Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
Published
May 29, 2008
We
have seen many heated discussions arguing the often asked question:
Can a non-member (not
deeded
owner)
of an association
be
elected
to
serve on the association’s board of directors?
Well,
there is sure no obvious answer to this question in FS 718 – no sentence
like:
Only
deeded owners are eligible for board membership!
The Division has over the last few years ruled (See: BYLAWS?
NO HURDLE FOR THE DIVISION!)
that provisions in the
association’s bylaws restricting eligibility to serve on the board are
not valid. The Division states
that if the by-laws permit non-owners may be board members. However, FS
718.112(2)(d)1 requires that only "unit owners" may
be candidates for board membership and they must comply with the
election provisions of the Florida Statutes.
Only Unit Owners may be elected to the board.
Non-unit Owners could possibly be appointed to the board if the By-Laws
permit, however, they may not be candidates and therefore may not be
elected.
Actually the only
real reference in the Florida Condo Act can be found in FS 718.112(2)(d)1:
“Any unit owner
desiring to be a candidate for board membership shall comply with
subparagraph 3.”
| 718.112(2)(d)1.
There shall be an annual meeting of the unit owners. Unless the
bylaws provide otherwise, a vacancy on the board caused by the
expiration of a director's term shall be filled by electing a new
board member, and the election shall be by secret ballot; however,
if the number of vacancies equals or exceeds the number of
candidates, no election is required. If there is no provision in
the bylaws for terms of the members of the board, the terms of all
members of the board shall expire upon the election of their
successors at the annual meeting. 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. The validity of an action by the board is
not affected if it is later determined that a member of the board
is ineligible for board membership due to having been convicted of
a felony. |
The only reasonable
interpretation of this sentence: Only a unit owner can be a
candidate for the board of directors!
If
interpreted otherwise, it would mean that candidates who are not unit
owners don't have to follow the rules! That would be a little far-fetched
– even considering the often vague language of the Condo Act.
That
leaves only one reasonable explanation: With the wording in FS
718.112(2)(d)1 legislators clearly wanted to make sure that only unit
owners could be eligible candidates for the election of condo association
board members.
Let's face it: Common sense alone dictates that only deeded owners can
serve on the association board -- after developer turn-over. How
can somebody serve on the board who can't even participate in a membership
meeting? Don't forget, we have seen many examples where boards removed
non-deeded owners -- often spouses of owners -- from membership meetings.
That clearly indicates that a board member would have to be a deeded
owner, or he/she would have to be removed as well?
If
Florida Statutes don't prohibit non-members from serving on the board, you
would have the admittedly weird situation that a person can vote at a
board meeting, but can't vote at a membership meeting -- or even
participate in a membership meeting!
This
wording would as well require the Division to take action, if complaints
are filed about non-members serving on the board. This is clearly not an
issue of interpreting or enforcing condominium documents – it’s a
violation of Florida Statutes!
This link takes you
to one of the typical "we
don't want to get involved" letters of the Division.
Claiming
to have no jurisdiction over bylaws issues, the Division tells condo
owners to send a written inquiry to the board. The board will respond with
another "GET LOST" letter and the next thing is litigation.
The
members of a condo association in
Jacksonville
are recalling the president of the board after finding out that he is not
an owner. But, after the recall petitions were served, he refused to
certify the recall and is using association money to pay the law firm of
Clayton & McCulloh to fight the recall -- at the expense of the unit
owners.
That's what happens
when the Division refuses to do its job. But in a recent disputed recall
in the PLAYA
DEL MAR condominium in
Fort Lauderdale, board attorney Randall Roger used the "legal
standing" approach, claiming that recalled board member Mark Stern
should not have been a member of the board in the first place since he is
not a deeded owner. Stern is
the trustee of the unit and there was never any doubt about his right to
vote or sit on the association board! This was obviously just another
attempt to postpone the ruling of arbitrator James Earl to hand over
certain documents to the recall petitioner. And Roger surely achieved his
goal stalling the progress of the arbitration procedure.
It
took arbitrator James Earl about three months to come up with the decision
that Mark Stern could serve on the board of directors of the Playa del
Mar.
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PETITIONER
MARK STERN'S RESPONSE TO RESPONDENT'S MOTION TO DETERMINE
STANDING OF PETITIONER AND TO SEEK RELIEF SOUGHT BY PETITION FOR
NON-BINDING ARBITRATION (INGER GARCIA, ESQ.)
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REPLY
TO MEMORANDUM SUBMISSION OF PETITIONER MARK STERN, CONCERNING
STANDING (RANDALL K. ROGER & ASSOCIATES, P.A.)
-
ORDER
(JAMES W. EARL, ARBITRATOR -- DBPR)
As
long as condo owners are not being protected by the regulatory agency that
fails to do what it is supposed to do and comes up with self-serving
rulings that don't protect the rights of Florida's condo owners as
intended, the best bills -- like Rep. Julio Robaina's H
995 -- will not help to solve the many problems we see on a daily
basis in our condo associations.
Even
the
best law is useless without enforcement!
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718.112(2)(d)3.
3. The members of the board shall be
elected by written ballot or voting machine. Proxies shall in no
event be used in electing the board, either in general elections
or elections to fill vacancies caused by recall, resignation, or
otherwise, unless otherwise provided in this chapter. Not less
than 60 days before a scheduled election, the association shall
mail, deliver, or electronically transmit, whether by separate
association mailing or included in another association mailing,
delivery, or transmission, including regularly published
newsletters, to each unit owner entitled to a vote, a first notice
of the date of the election. Any unit owner or other eligible
person [1] desiring to be a candidate for the board must give written
notice to the association not less than 40 days before a scheduled
election. Together with the written notice and agenda as set forth
in subparagraph 2., the association shall mail, deliver, or
electronically transmit a second notice of the election to all
unit owners entitled to vote therein, together with a ballot which
shall list all candidates. Upon request of a candidate, the
association shall include an information sheet, no larger than 81/2 inches by 11
inches, which must be furnished by the candidate not less than 35
days before the election, to be included with the mailing,
delivery, or transmission of the ballot, with the costs of
mailing, delivery, or electronic transmission and copying to be
borne by the association. The association is not liable for the
contents of the information sheets prepared by the candidates. In
order to reduce costs, the association may print or duplicate the
information sheets on both sides of the paper. The division shall
by rule establish voting procedures consistent with the provisions
contained herein, including rules establishing procedures for
giving notice by electronic transmission and rules providing for
the secrecy of ballots. Elections shall be decided by a plurality
of those ballots cast. There shall be no quorum requirement;
however, at least 20 percent of the eligible voters must cast a
ballot in order to have a valid election of members of the board.
No unit owner shall permit any other person to vote his or her
ballot, and any such ballots improperly cast shall be deemed
invalid, provided any unit owner who violates this provision may
be fined by the association in accordance with s. 718.303. A unit
owner who needs assistance in casting the ballot for the reasons
stated in s. 101.051 may obtain assistance in casting the ballot.
The regular election shall occur on the date of the annual
meeting. The provisions of this subparagraph shall not apply to
timeshare condominium associations. Notwithstanding the provisions
of this subparagraph, an election is not required unless more
candidates file notices of intent to run or are nominated than
board vacancies exist. |
[1]
eligible
person other than unit owners, would be anyone expressly
permitted by the bylaws or other governing documents, e. g. corporate
officers, in the case of a unit owned by a corporation, may serve if
expressly permitted by the governing documents. Non-owning spouses of unit
owners may serve, if the governing documents expressly permit it.
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