Q: An issue recently arose in my homeowners’ association regarding who may be a candidate for election to the board of directors. A resident in the community, who is not on the deed of the home, has expressed an intent to run for the board. However, can a non-owner serve on the board of directors of a homeowners’ association? (Z.F., via e-mail)
A: Chapter 720, Florida Statutes, the Florida Homeowners’ Association Act, provides in Section 720.306(9)(a), that every member of the association is eligible to serve on the board of directors. Member is defined in the Act as “including but not limited to, the parcel owner.” However, the Homeowners’ Association Act does not expressly limit membership on the board of directors to members of the association.
Because homeowners’ associations are also typically Florida corporations not-for-profit, the relevant provisions of Chapter 617, the Florida Not for Profit Corporation Act, also have relevance. Section 617.0802, Florida Statutes, states that directors of corporations not-for-profit must be natural persons who are over the age of 18 years of age but need not be residents on the State of Florida. The statute goes on to state that the articles of incorporation or bylaws may prescribe additional qualifications for directors.
Any person over the age of 18 is legally qualified to serve as a director. However, the declaration, articles of incorporation or bylaws for your community can (and often do) require that directors be members of the association. Sometimes, they state that spouses of members may also serve. If the governing documents are silent concerning additional qualifications to serve on the board of directors, then any person, regardless if they are affiliated with your community or not, would legally be eligible to serve on the board of directors.
Chapter 718, Florida Statutes, the Florida Condominium Act contains similar language regarding every unit owner being eligible to serve on the board of directors, but again, contains no express restriction on limiting board members to unit owners.
Therefore, to determine whether this individual is qualified to serve on your board of directors, it would be necessary to review the language of the governing documents, specifically the articles of incorporation and bylaws, for the association.
Q: Can a member owner of an association record board meetings? (R.F., via e-mail)
A: Yes. The Florida condominium, cooperative, and homeowners’ association statutes all provide that any member of the association may “tape record or videotape” meetings of the board of directors or membership meetings. Obviously, those laws are in need of some updating since most recording these days is not done with any kind of “tape.”
Boards are permitted to adopt reasonable rules regarding the recording of meetings. Such rules might include a prior registration requirement, restrictions on disruptive equipment (such as bright lights), restrictions on disruptive conduct (such as moving around the room or “sticking a camera in someone’s face”) and the like.
The statutes do not address what a member may do with the recording. I have seen many of these posted on social media, with salacious titles like “Board Meeting Turns Into World War 3.” These postings are usually intended to portray the association or its board in an unflattering light. This presents legitimate competing legal interests of free speech and privacy.
We all have some reasonable expectation of privacy regarding our image and likeness being published in the public sphere, including volunteer board members and owners who choose to participate in association affairs. The question of whether those rights are waived by participating at a quasi- “public” meeting or are outweighed by general notions of “free speech” protections have not been addressed by the courts to my knowledge.
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 firstname.lastname@example.org. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.