Association Board of Directors Eligibility According to Florida Law

When it comes to community associations, nothing generates more conflicts and disputes than a hotly contested election for the association’s board of directors.  Most often, the debate involves whether or not, under Florida law, a certain individual is even eligible to serve on the association’s board.

Section 718.112(2)(d), Florida Statutes, explains that anyone desiring to be a candidate for the association’s board must give written notice of his or her intent at least 40 days prior to the scheduled election.  Moreover, the person providing such notice must be eligible to serve on the board at the time notice is given.  The candidate-to-be must be eligible according to the following provisions of Florida condominium law:

• “In a condominium association of more than 10 units . . . 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.”  Fla. Stat. § 718.112(2)(d)(2).

• A person who has been suspended or removed from office by the division is ineligible to run for board election.  Id.

• A person delinquent “in the payment of any fee, fine, or special or regular assessment . . . is not eligible for board membership.”  Id.

• Anyone convicted of a felony in Florida or in any United States District, “or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed [in Florida], is not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years. . . .”  Id.

While those provisions of Florida law deem a person ineligible to run for election, the association should also keep in mind the provisions that apply to existing board members who may no longer be able to serve due to the following:

• Anyone elected or appointed to the board must “within 90 days . . . certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.”  Fla. Stat.  § 718.112(2)(d)(4)(b).

• In lieu of the certified writing mentioned above, “within 90 days after being elected or appointed to the board, the newly elected or appointed director may submit a certificate of having satisfactorily completed the educational curriculum administered by a division-approved condominium education provider within 1 year before or 90 days after the date of election or appointment.”  Id.

• Any elected member who fails to timely file the written certification or educational certificate as mentioned above is suspended from service on the board until he or she does so, and the board may temporarily fill the vacancy during the period of suspension.  Id.

• Any elected director or officer who becomes “more than 90 days delinquent in the payment of any monetary obligation due the association shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law.” Fla. Stat.  § 718.112(2)(n).

• “A director or officer charged by information or indictment with a felony theft or embezzlement offense involving the association’s funds or property must be removed from office. . . .”  Fla. Stat.  § 718.112(2)(o).

One aspect of Florida law that association members may not be aware of is that even if a certain elected board member is later found to be ineligible to serve, the actions taken by the board while that person was serving are still valid and enforceable.  Fla. Stat. § 718.112(2)(d)(2).

One final item that association members should keep in mind is that non-unit owners may be able to run for the association’s board.  While Florida Statutes often mention only the term “unit owner,” the statutes’ board requirements are actually directed toward “[a]ny unit owner or other eligible person desiring to be a candidate. . . .”  Fla. Stat. § 718.112(2)(d)(4)(a) (emphasis added).

The situation where a non-unit-owner runs for office may exist if, for example, the unit is owned by a corporation and an officer of that corporation wishes to run.  Another common situation exists when the spouse of a unit owner, who is not on the deed his or herself, wishes to run.  However, in either situation, a non-unit-owner can only run for election for the association’s board if the by-laws specifically allow for it.  If the by-laws do not grant this privilege to non-unit-owners, then, under Florida law, only unit owners may serve on the association’s board.