Editor’s Note: David G. Muller is a Board Certified Attorney in Condominium and Planned Development Law with Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Naples, Fort Myers and 10 other Florida cities. The Firm focuses a substantial amount of its practice on condominium and homeowners association law. Attorney Muller responds to your community association questions. Send questions to Attorney Muller by e-mail to firstname.lastname@example.org.
Q: In your September column you addressed the new term limit law for condominium association directors. Have there been any developments regarding this law since your September column was published? T.W.
A: Yes. The recent amendments to the condominium statute establishing 8-year term limits for directors have raised many questions. As discussed in my September 16, 2018 column, there is a significant legal question as to whether this law should be applied retroactively. Since my September column was published, the Division of Florida Condominiums, Timeshares, and Mobile Homes, the state agency that has certain regulatory oversight over condominiums, has concluded in at least one case that the law does apply retroactively.
Even if the Division’s position is correct (and I personally do not believe that it is), “termed out” directors still have the right to put their name in for election. If there are insufficient candidates to require a contested election, they are entitled to be seated on the board. If there is a contested election, and they receive at least 2/3rds of the votes cast, they are likewise entitled to be seated under the current law. If they are elected, but not by 2/3rds of the ballots cast, the association will need to make a decision based on advice of legal counsel as to the best course of action to take.
Q: I serve on the Board of a homeowners association. I travel quite a bit and am often not able to attend the regularly scheduled Board Meetings. We are getting ready to vote on some very important issues and I want to make sure I get to exercise my vote. Can I vote through the use of a proxy? J.A.
A: No, Section 720.303(2)(c)3, of the Florida Homeowners’ Association Act specifically prohibits a director from voting via proxy on matters that come before the Board. Similar prohibitions exist in the Florida Condominium Act and the Florida Cooperative Act, found at Chapters 718 and 719 of the Florida Statutes, respectively.
Q: Is the president of the board only supposed to vote in order to break a tie? S.S.
A: Most community association bylaws require the president to be a director. Often the president serves as the chairperson of the board of directors’ meetings. As a director the president also participates as a member of the board during board meetings.
Although Robert’s Rules of Order and similar parliamentary guides provides that the chair only votes in the event of a tie, even if the bylaws incorporate Robert’s Rules, state law supersedes the procedural guidance from these manuals.
Under Florida law, directors who are present and attending meetings where action is being taken are presumed to have agreed with such action, unless the director votes against the issue or abstains from voting. So, as a director, the president gets one vote which should be cast on the issue at hand in the same manner as other directors.
In the rare instance where the president is not also a director (I don’t recall ever having seen this), he or she would not be able to cast a tie breaking vote since only directors are permitted to vote.
Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples (www.beckerlawyers.com). The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this column does not create an attorney-client relationship between the reader and Becker & Poliakoff, P.A. or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.