Trustee Likely Able to Serve on the Board

Trustee Likely Able to Serve on the Board

Q: I am the trustee of a trust that owns a condominium.  I want to run for the board of directors at the next annual meeting. My neighbor said that I will not be able to run because my name is not on the title. As the trustee of the trust that owns the condominium, am I qualified to run for the board? (C.M., via e-mail)

A: Probably. You should first review the association’s bylaws to see if there are any provisions addressing whether a trustee qualifies to be a director. If the bylaws are silent on the issue, Chapters 607 and 617, Florida Statutes (the “Florida Business Corporation Act” and the “Florida Not For Profit Corporation Act,” respectively) do provide some guidance. However, the answer may depend on whether or not you reside in the unit.

The Florida Business Corporation Act states that in the event the eligibility to serve as a member of the board of directors of a condominium association is restricted to membership in such an association, a grantor of a trust or a qualified beneficiary of a trust which owns a unit shall be deemed a “member” of the association and is eligible to serve as a director of the association provided that the beneficiary occupies the unit. The Not For Profit Corporation Act, which applies to all not for profit associations, has a similar provision.

Additionally, the Division of Condominiums, Timeshares, and Mobile Homes, the state agency which regulates condominiums and adjudicates most condominium election issues, has taken the position that where the association’s bylaws provide that a board member must be the owner of a unit, it is reasonable to interpret this language to apply to other current, legal interests, such as trustees. Therefore, unless there is something in your association’s condominium documents stating otherwise, you, as the trustee, would likely be eligible to serve as a director of the association.

Q: I was recently appointed to my homeowners’ association’s board of directors, and there are a number of questions that I and the other board members have. Particularly, is there any Florida law that states how many members of the board there must be? Additionally, how is the board supposed to address vacancies when a member of the board of directors resigns? (K.E., via e-mail)

A: For homeowners’ associations, governed by Chapter 720, Florida Statutes, the “Homeowners’ Association Act,” there is no guidance concerning the number of board members an association must have. Therefore, it would be necessary to review the governing documents for your association to determine if either the articles of incorporation or the bylaws define how many board members your association is supposed to have. Well-written documents will state with specificity the size of the board. Accordingly, in order to determine how many board members your association is supposed to have, it would be necessary to review the governing documents. However, for many associations the default position is five board members.

With regard to condominium associations, governed by Chapter 718, Florida Statutes, the “Condominium Act,” Section 718.112(2)1, states that in the absence of a provision in the bylaws specifying the number of board members, the board should be composed of five members unless the condominium has five or fewer units. This same section also provides that where the condominium has five or fewer units the board must consist of at least three members, unless the bylaws provide otherwise. Therefore, a condominium association with five or more units would have a five member board and one with five or fewer units would have at least a three member board, unless the bylaws provide otherwise.

With regard to filling vacancies, both Chapter 718 and 720, Florida Statutes, state that a vacancy on the board of directors may be filled by a vote of a majority of the remaining board members, unless the governing documents state otherwise.

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.