Does A Condo Board Member Have To Be
Opinion By Jan Bergemann
Published May 29, 2008
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?
there is sure no obvious answer to this question in FS 718 – no sentence
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.
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.”
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?
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.
members of a condo association in
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.
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!
 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.