“Condo Director Term Limits Questioned” – News-Press
Q: Our condominium association hasn’t held elections for many years due to a lack of more applicants than available board seats. We are considering amending how we handle board terms and adding term limits at the next annual meeting. Should we implement staggered terms for continuity and fair rotation, or should board members be allowed to serve terms longer than 8 years? (D.F., via e-mail)
A: The fact that your association has not had elections for many years indicates that the owners are happy with the job the board is doing, that there is a scarcity of people willing to volunteer, that people are hesitant to challenge the incumbent board seats due to fear of embarrassment if they lose or other reasons, or some combination thereof. There are definitely two sides to this coin. A mix of ideas and some “new blood” is often healthy for organizations. However, finding directors is becoming increasingly harder, in large part due to the oppressive state regulations that have been enacted in the past several years.
Section 718.112(2)(d)2. of the Florida Condominium Act provides that a board member cannot serve more than 8 consecutive years. The statute further provides that “only board service that occurs on or after July 1, 2018, may be used when calculating a board member’s term limit.”
There are two exceptions to the term limits imposed by the statute. First, if a “termed-out” director stands for election and receives at least two-thirds of the election votes cast, they may be reelected. Secondly, if a “termed-out” director places their name into nomination and there are not enough candidates to require a contested election, they may be seated on the board.
In addition to the “statutory term limit” of 8 years, the bylaws can impose shorter term limits. While I run across this occasionally, it is rare. However, if it is something your community wants politically, there is usually a petition process contained in bylaws that would set forth the procedures for owners to initiate an amendment vote, and the board is usually empowered to do so as well.
Q: Does a situation where a condominium unit owner purchased a property between the time an amendment was voted on and the time the amendment was recorded, with the amendment not officially recorded under after their purchase, present any issues? (S.H., via e-mail)
A: It depends on the facts, but usually not.
An amendment to the declaration of condominium, articles of incorporation, and bylaws is not effective until recorded in the public records of the county where the condominium is located. Amendments to the articles of incorporation also need to be filed with the Florida Secretary of State, Division of Corporations.
Although I am not aware of any appeals court decisions on point, it is my view that condominium unit purchasers are on “constructive notice” of all official records of the association, including meeting notices for amendment votes in progress. A buyer can require, as part of their contract due diligence requirements, that the seller obtain that kind of information from the association and provide it to the buyer.
If a proposed amendment was properly approved at the time of its consideration, it will be binding on all who are owners of record on the date of recording it. It is not common for amendments to distinguish between owners based on who owned on the date of amendment and who became an owner after the amendment is recorded. However, it does happen occasionally, most commonly when an existing right or privilege is modified by an amendment and existing owners, or “classes of owners,” are “grandfathered.” This occurs most frequently regarding changes in pet regulations and rental rights.
Q: Are HOAs required to send out proxy forms every time an item comes up for a vote or are members required to ask for one? (W.S., via e-mail)
A: Section 720.306(8) of the Florida Homeowners’ Association Act states that members of the association have the right to vote in person or by proxy unless otherwise provided in the bylaws. However, while it is normal to do so, the law does not require the association to send out proxy forms with the meeting notice, nor even prepare a proxy form for use at the meeting. The association may not reject a proxy form tendered by an owner if it complies with legal requirements.
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.
