Q: Where do I find in the statutes about relatives being on the board? I was told that if you are a relative, you cannot be on the board at the same time. Is that true? If so, what level of blood relation does it go to? (J.C., via e-mail)
A: The law does not address “relatives” being on the board, but rather whether more than one owner from the same unit or home can simultaneously serve on the board. As a practical matter, that most often involves spouses, but the degree of relationship is not legally relevant. The law is also different for different kinds of associations.
Sections 720.306(9)(a) & (b) of the Florida Homeowners’ Association Act says that all members of the association can serve on the Board, unless the member is delinquent in any monetary obligation to the association, or the member who has been convicted of a felony and has not had their civil rights restored. Therefore, if more than one person is on the deed in the HOA setting, they would all have the right to run for the board, even if this resulted in two people from one home being on the board at the same time.
Section 718.112(2)(d)3 of the Florida Condominium Act similarly provides that all members who give timely notice can run for the board. Disqualifications in the condominium context likewise include being delinquent in monetary obligations to the association and felony conviction. An additional qualification in the condominium statute includes having been suspended or removed from office by the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation.
718.112(2)(d)2 of the Florida Condominium Act provides that in a residential condominium association of more than 10 units, or in a residential condominium association that does not include timeshare units or timeshare interests, co-owners of a unit may not serve as members of the board of directors at the same time unless they own more than one unit, or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.
In summary, there are no restrictions in homeowners’ associations against co-owners simultaneously serving on the board, while there is such a restriction for most condominiums, unless the co-owners own more than one unit, or there are insufficient candidates to require a contested election.
Q: Can board members abstain from voting without a stated reason or conflict? (G.M., via e-mail)
A: For decades, a condominium association director was only permitted to abstain due to a conflict of interest. That law was changed in 2008.
The current condominium statute states that a director who is present at a board meeting is presumed to have assented to the action taken at the meeting, unless he or she votes against such action, or abstains from voting. The statute goes on to state that a director who abstains from voting on any action shall be presumed to have taken that position with regard to the action. A conflict of interest is not required, and no reason need be given.
Section 720.303(3) of the Florida Homeowners’ Association Act similarly states that any vote or abstention by a director present at a board meeting must be recorded in the minutes. There is no requirement, nor has there ever been in the homeowners’ association context, that a director who abstains from voting asserts a conflict of interest or gives a reason.
That said, directors of associations owe a fiduciary duty to all owners and in my opinion, should rarely decline to vote on issues no matter how controversial or unpopular they may be, unless there is an actual or potential conflict of interest.