Q: A member of our condominium association board recently resigned, unexpectedly, part way through the first year of their two-year term. According to our bylaws, a board member appointed to fill a vacancy serves until the next scheduled election. Does the temporary replacement serve only until the next annual meeting, or can they fill out the term of the person they replaced? (G.S., via e-mail)
A: Section 718.112(2)(d)9. of the Florida Condominium Act states that unless otherwise provided by the bylaws, a vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of a majority of the remaining directors (even though the remaining directors constitute less than a quorum), by the sole remaining director, or by membership election. Unless otherwise provided in the bylaws, a board member appointed or elected under this section shall fill the vacancy for the unexpired term of the seat being filled.
Apparently, your association’s bylaws say that a board member appointed to fill a vacancy will serve until the next scheduled election, rather than for the unexpired term of the seat being filled. Therefore, this is the outcome in your case.
While I have seen many sets of bylaws that contain similar language, it creates problems. When the person appointed to fill the vacancy must step down at the end of the first year of a two-year term, confusion arises as to how that seat is filled thereafter. If there is going to be a special election, and that seat will only be filled for one year, the law does not say how that is done. If, on the other hand, that seat is held open for a two-year term, then the staggering of seats set forth in the bylaws is usually thrown off kilter.
While your association must follow the law and its bylaws, legal counsel should be consulted to assist in keeping the board seats in the proper term order. Counsel should also be asked to advise about amending the bylaws to incorporate the statutory default practice of filling board vacancies for the unexpired term.
Q: Our homeowners’ association requires all vehicles to be parked in garages of driveways. For the past two years, a deputy has been parking their police cruiser near the entry gate to our private community roads, creating safety concerns because it is on a curve. Despite multiple requests to move it, the deputy has refused. With the recent law regarding emergency vehicles, we’re unsure how it affects our association’s parking rules. Does the association have any control over emergency vehicle parking under this new law? (B.G., via e-mail)
A: Section 720.318 of the Florida Homeowners’ Association Act prevents a homeowners’ association from stopping first responders, including law enforcement officers, from parking their assigned emergency vehicles in areas where they have the right to park.
The purpose of this law is to prevent HOAs from generically lumping first responder vehicles which can be taken home with “commercial vehicles,” which are restricted in many communities (although the law has recently changed on that point as well). However, the law only applies to areas where the person would otherwise have the right to park a private vehicle.
Based on the information provided, it appears that the association can take action to address the situation. Obviously, before embarking on a potential legal dispute with the local sheriff’s department, the association should seek legal assistance.
Q: I am concerned about damaged sidewalks in my condominium complex. Usually, the condominium association is responsible for maintaining common areas like sidewalks. Could the association be held liable if someone is injured? (K.F., via e-mail)
A: Possibly. The association has the duty to maintain the common elements of a condominium in a proper state of repair.
For example, in one case, Florida’s Third District Court of Appeal ruled that an owner who fell on buckled carpet in their condominium hallway, despite their prior complaints, was entitled to have a jury decide if the association should have foreseen the risk and taken action to prevent it.
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.