Q: Our condominium board president has filled vacancies with “snowbirds” that are not here for most of the year. Does Florida law require their attendance at regular board meetings? Are there any requirements for attending a minimum number of board meetings or being removed for missing meetings? (G.K., via e-mail)
A: As an initial matter, the president has no authority to fill board vacancies, this requires action by the entire board.
The Florida Condominium Act states “every owner” is eligible to serve on the board except for certain statutory disqualifications regarding assessment delinquency, specified felony histories, co-ownership where two people from the same unit would sit on the board (though still permissible if there is not a contested election), and cases where a director has served more than eight consecutive years, calculated as of July 1, 2018 (although there are also exceptions where such individuals can serve on the board).
All owners have a vested interest in the operation of the association, including full time residents, seasonal residents, and unit owners who do not ever reside at the condominium such as investment/rental owners. In today’s age of widely available and easy to use video conferencing, a director’s physical location should not pose a problem in terms of the ability to actively participate. Even so, I do see cases where a board member “checks out” and refuses to engage in association governance or attend board meetings.
In my opinion, given that directors owe a fiduciary duty to each unit owner, a director who decides that he or she would prefer not to participate in the affairs of the board should resign from the board. While communities have tried to establish certain requirements for board service, including attendance requirements and residency requirements (for example to require that a director must reside in the community a minimum number of months per year), the Division of Florida Condominiums, Timeshares, and Mobile Homes has ruled that such requirements are invalid, which I believe is the correct interpretation of the law.
The Division’s interpretation is that once a person has been seated on the board, even if by appointment, they may only be involuntarily removed through the “recall” process, which requires a majority of all voting interests to “vote out” a director. This can be done during their term and with or without cause. There are a few exceptions. The Division may remove a director for violations of law, directors who are financially delinquent are deemed to have abandoned their offices, and directors who have been indicted or charged with embezzlement must leave the board.
The fact that your association is filling vacancies by appointment suggests that there was no election, meaning that other unit owners are not stepping up to take their turn at board service. This is not uncommon. Board service can be demanding and sometimes thankless. If your association is having trouble maintaining board members, you may want to suggest that the association consider amending its bylaws to reduce the required size of the board, the law generally requires a minimum of three board members.
Q: Our HOA board recently adopted changes to our declaration. They said they would be sending out rules and regulations later. Don’t they have to do this at a board meeting? (K.M., via e-mail)
A: I would be surprised if the declaration gives the board the authority to amend it. An owner vote is almost always required.
Most governing documents grant the board rule-making authority over the common areas, and often also the “parcels” (lots and homes). The board must adopt rules at an open board meeting with at least 48 hours posted notice. If a proposed rule regulates the use of parcels, the law requires 14 days’ notice be given for that board meeting, both by posting and actual delivery to each owner.
Joseph E. Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.