Q: In the past you have written articles concerning the term limits provision added to the Condominium Act. I was wondering if there have been any updates on that issue and how the term limits now apply to current board members? (V.R., via e-mail)
A: Since the Legislature originally amended the Florida Condominium Act in 2017, there have been many questions, confusion and differing legal interpretations as how the new term limit should apply. Some argued it was retroactive completely, some argued that it could not be applied to existing condominium associations.
The original amendment to the statute in 2017 stated that board members could only serve four 2-year terms. On its face, the 2017 change did not apply term limits if there were 1-year terms and did not state the look-back date for measuring term limits. In 2018, the Legislature amended the statute to state that the term limit was intended to be an 8-year term limit, regardless of the length of board terms.
To confuse matters further, the state agency which regulates condominiums issued conflicting rulings and pronouncements on the issue, originally holding the law to be retroactive to the beginning of the term of any sitting director, and later reversing that position. Fortunately, in 2021, the Legislature laid the issue to rest. The statute now provides that the 8-year term limit only applies to board terms that began on or after July 1, 2018. Therefore, July 1, 2026, would be the earliest that the term limit could apply to limit a sitting board member from serving.
Additionally, even “termed out” directors can continue to serve on the board if there are insufficient candidates to fill all the vacancies on the board at the time of the election, or if two-thirds of all votes cast in the election vote to reelect the otherwise term-limited board member. In other words, when it becomes operative in 2026 could still run for the board. If there are only as many or fewer candidates as open seats, they are automatically re-seated. If there is a contested election, they are still elected if they receive two-thirds of the votes cast.
It is also noteworthy to point out that the condominium statute also permits the bylaws of the association to establish term limits for the association, which can be stricter than those mandated by the law. The term limit statute only applies to condominiums. Neither the Florida Cooperative Act nor the Florida Homeowners’ Association Act impose statutory term limits.
Q: Is a fining committee meeting to be conducted in the open or should it be closed to everyone except committee members, the resident being fined, and any named representative (e.g., legal counsel) of the resident being fined? Our condominium association’s bylaws do not speak to this question. (R.K., via e-mail)
A: This is a frequently debated question which can be argued from both sides and has not been addressed by the appellate courts. The Florida Condominium Act provides that notice of all board meetings must be posted at least 48 hours in advance and be held open for all unit owners to attend.
The statute also provides that meetings of committees that can take final action on behalf of the board, or which make recommendations to the board regarding the budget, must follow the same “sunshine” rules applicable to board meetings. In industry slang, these are “statutory committees.”
Meetings of any other committee (“non-statutory committees”) must also follow the “sunshine” rules with the important exception that the bylaws can exempt them. Some do, some do not.
If your bylaws are silent, all committee meetings are open to owners. If they exempt non-statutory committees, the legal question is whether the fining committee, which can approve or reject a fine levied by the board, is taking “final action on behalf of the board.” That is a fairly debatable and an open legal question. I recommend that these meetings be open.
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.