“Board Member Qualifications and Assessment Delinquencies” – News-Press

Q: A husband and wife currently serve on the board of directors of my condominium association. I did not think this was permitted. Are they both allowed to serve on the board? (K.R., via e-mail)

A: Chapter 718, Florida Statutes, the Florida Condominium Act, generally prohibits co-owners of a unit from simultaneously serving on the board of directors. However, there are exceptions. Section 718.112(2)(d)3 of the Condominium Act states that co-owners of a condominium unit may not simultaneously serve on the board of directors unless they own more than one unit or unless there are not enough eligible candidates to fill vacancies on the board of directors.

So, for example, if a husband and wife own multiple units they would both be eligible to serve on the board at the same time. Similarly, if both the husband and wife seek to run for the board and there are not enough eligible candidates to require an election, meaning there are equal to or fewer candidates than open seats, then they both are entitled to serve on the board. Otherwise, only one of them is eligible to serve on the board of directors at any one time.

This is the rule for condominium associations. Chapter 720, Florida Statutes, the Florida Homeowners’ Association Act, which governs homeowners’ associations, does not have similar language regarding co-owners serving on the board at the same time. However, the bylaws of a homeowners’ association may limit co-owners from serving on the board at the same time.

Q: Recently one of the members of the board of directors in my condominium association stopped paying their assessments. What can we do about this? (M.G., via e-mail)

A: Unit owners in a condominium association governed by Chapter 718, Florida Statutes, the Florida Condominium Act, always have the right to recall a board member at any time with or without cause if the recall is approved by a majority of the voting interests of the association. There are specific procedures that govern the recall of a board member as outlined in Section 718.112(2)(l) of the Condominium Act.

Here, however, because you have advised that the board member in question is delinquent in the payment of the assessments to the association, recall may not be required, and the board member may be deemed to have already abandoned that position on the board. Section 718.112(2)(p) of the Condominium Act provides that any director or officer who is more than ninety (90) days delinquent in the payment of any monetary obligation to the association, which would include assessments, shall be deemed to have abandoned the office. This creates a vacancy on the board that the association can fill in accordance with the law.

Typically, when a vacancy occurs on the board of directors, the remaining board members have the right to appoint someone to fill that vacancy for the balance of that director’s term. However, some condominium documents may provide for other procedures for filling vacancies and could require a special election or provide that the vacancy is only filled until the next annual meeting and not for the balance of the term if the term was for multiple years.

However, to the extent that the director in question is ninety (90) days or more delinquent in the payment of any monetary obligation to the association, the law provides that they have abandoned office and their seat is vacant. The association would need to confirm with its condominium documents for the manner to fill that vacancy.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.