Generally, the ability to serve on a condominium association’s board of directors is overlooked and not raised as an issue. While this may seem like good news for the association, it could create issues in the future. This blog will discuss the limitations on who may serve on the board of directors for a condominium association.
The rules for eligibility come from Florida statutes and the governing documents for specific communities. Florida statutes provide a baseline for eligibility, while many association governing documents provide more limitations than the statutes. Preliminarily, to serve on the board of directors, the individual must be at least eighteen (18) years old. This rule comes from the Florida Not For Profit Corporation Act, Section 617.0802, Florida Statutes, which applies to condominium associations because most condominiums are organized as non-profit organizations. This is not a common problem for most condominium associations as most candidates for the board of directors are older than eighteen (18). In addition to the age limitation found in the Florida Not For Profit Corporation Act, the Florida Condominium Act includes limitations on eligibility.
One of the most common questions involving eligibility, which is answered by the Florida Condominium Act, Section 718.112(2)(d)(2), Florida Statutes, is whether co-owners may serve on the board of directors at the same time. Generally, the answer is no, co-owners cannot serve at the same time. However, there are two exceptions to this rule: (1) if the co-owners own more than one unit or (2) if there are not enough eligible candidates to fill the vacancies. In the event of co-owners owning more than one unit or the inability to fill the vacancies, the co-owners could serve on the board of directors at the same time.
Section 718.112, Florida Statues includes other limitations as well. The individual seeking a position as a director must not be delinquent in their payment of assessments to the association. See Section 718.112(2)(d)(2), Florida Statutes. Requiring an individual to be current on the payment of their assessments to the association is a simple concept because the association does not want a director enforcing the payment of assessments when that director cannot pay his/her own assessments.
Finally, Section 718.112(2)(d)(2), Florida Statutes provides limitations on the ability of felons to serve on the board of directors, which states as follows:
A person who has been convicted of any felony in this state or in a United States District or Territorial Court, or who 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 such person seeks election to the board. The validity of an action by the board is not affected if it is later determined that a board member is ineligible for board membership due to having been convicted of a felony.
As mentioned above, the statutory authority is a jumping off point for determining who is eligible. The association must also review its documents for limitations. For example, there is no statutory guidance on whether a director must be an owner in the association. However, many condominium governing documents will include provisions speaking to this particular issue. The board of directors of associations should familiarize themselves with these limitations, especially at the time of the annual elections.
The importance of eligibility is recognized when a resident in the community challenges the director’s present eligibility or the director’s eligibility at the time of running for the position. One concern is that actions taken during the ineligible director’s term of service will be reversed. Section 718.112, Florida Statutes, states that if the director is disqualified because he or she is later convicted of a felony, the decisions made during that term remain intact. However, there is a lack of guidance on what happens when a director was ineligible at the time of running for his or her position and/or where a director becomes ineligible in the middle of his or her term but stays in the position. While this blog does not discuss the possible outcomes of when a director is deemed ineligible, associations should consult their attorney if this issue arises. Reversing the actions of the board of directors could create serious financial consequences.
At a minimum, an individual must be eighteen (18) years old, must be current on the payments of assessments, must not have been convicted of a felony or must have had their rights restored to serve on the board of directors, and given the appropriate circumstances, a co-owner may serve at the same time as another co-owner.