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CAN
EVERYBODY SERVE ON AN ASSOCIATION BOARD?
By
Jan Bergemann
Published
October 5, 2012
Definitely
not – according to Florida statutes and bylaws of the associations!
But
the Florida statutes are not really clear on this issue. As usual, the
language used in the statutes is open to interpretation and
makes no clear statement as to who can – and who can not –
serve on the board of an association.
And
in order to make it even more difficult for the people dealing
with these issues, the language in FS 710 and FS 720 differs.
What’s new?
The
main question always is: Do you have to be a deeded owner in
order to serve on your association board? In my opinion the
answer to this question is a RESOUNDING YES!
In this case I even disagree with Eric, because I think the
“hidden” – meaning reading between the lines -- language
in both FS718 and FS 720 requires membership
in these associations. Maybe I’m using too much common sense
to interpret the statutes, while Eric is using his legal
expertise, but in the end it’s all a matter of how you
interpret the wording of these statutes. What’s written –
and what isn’t written!
Let’s
start with FS 718 (Condo
Act):
I
base my interpretation on this sentence in FS 718.112(2)(d)4.a. Any
unit owner or other eligible person desiring to be a
candidate for the board must give written notice of his or her
intent to be a candidate to the association at least 40 days
before a scheduled election.
If
the legislators intended to allow everybody to be eligible to
run for the board of directors, they would have not worded the
provision as they did. In my opinion the words “other eligible
person” means members from units where the deed is not in the
name of an actual person, but of an entity like a trust or a
corporation. The persons behind these entities are eligible,
even if they are not officially the unit-owners – and that’s
how I interpret these words.
There
are a lot more restrictions to people being eligible as board
members of a condominium association. If you are interested,
please visit these two Webpages which describe in more detail
what other hoops one has to jump through to be able to serve on
the board of directors:
http://www.ccfjfoundation.net/condoboardeligibility.htm
http://www.ccfjfoundation.net/condoownerboard.htm
The
wording in FS 720 has similar provisions, but in the end I feel
it creates nearly the same restrictions for eligibility to serve
on a HOA board.
The
language I refer to can be found in FS 720.306(9)(a):
All
members of the association are eligible to serve on the board of
directors, and a
member may nominate himself or herself as a candidate for the
board at a meeting where the election is to be held or, if the
election process allows voting by absentee ballot, in advance of
the balloting.
It’s
unusual that the language in FS 720 is more defined than the
equal wording in FS 718, but in this case there are no “other
eligible persons” mentioned.
We
have seen wild interpretations of this language. In one HOA the
president declared that only “members” can be elected, but
that doesn’t keep him from appointing a non-member, since no
election will be held. Ouch!
In
HOAS there are fewer eligibility hoops than in FS 718. A simple
paragraph determines any member who can’t serve on the board:
FS 720.306(9)
(b) A
person who is delinquent in the payment of any fee, fine, or
other monetary obligation to the association for more than 90
days is not eligible for board membership. A person who has been
convicted of any felony in this state or in a United States
District or Territorial Court, or has been convicted of any
offense in another jurisdiction which 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. The validity of any action by the board
is not affected if it is later determined that a member of the
board is ineligible for board membership.
(Florida
Statutes 720.306-Homeowners' Associations)
Again,
it all comes down to interpretations, but I doubt the
Florida
legislators wanted everybody to be able to serve on community
association boards. It’s outright dangerous to have people on
the board that have no vested interest in the association.
Remember the wild case in
Miami
where a management “elected” people to the board nobody
actually knew – and who were definitely not owners in the
communities? For the management company it sure was a great way
to run the show, while the actual owners ran against a wall of
silence!
So,
even if the statutes may not be totally clear – nobody else
but a member (owner) should be allowed to serve on the board of
directors.
And
if the language in the statutes isn’t clear enough, it should
be fixed during the next legislative session.
What
say you?
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