Condos and HOA's

Electric charging and natural gas fueling options at condominiums

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With the increased interest in electric charged, and now natural gas fueled cars, Chapter 718.113(8) and (9), Florida Statutes was amended effective July 1, 2021 to accommodate unit owners desiring ownership of such alternative vehicles.  We have seen demand so far for electric charging stations but not yet for natural gas fueling stations.

First, such owners can install electric charging or natural gas fueling stations within the boundaries of their assigned limited common element parking spaces.  The stations must be separately metered or metered by an embedded meter and payable by the unit owner installing such.  The charging or fueling costs must be paid by the unit owner installing the station and the installation, operation, maintenance, repair and any increased insurance costs or removal costs are the responsibility of the unit owner.

The Association can require reasonable architectural standards for the stations and required the installer to be licensed and registered.  It can also require a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for any claim related to the stations and/or pay any increased cost in the Association insurance because of the individual station.

As a second option, some Associations are determining they would rather install communal stations on the common elements to be used by multiple unit owners rather than numerous individual stations at the individual assigned parking spaces.  The benefit of the communal stations is that you can add additional ones as the demand rises rather than installing a lot of them before the demand is there and the cost per user is less than individual stations.  Such communal stations should be paid for by the owners who will be using them to avoid some owners paying to “fill up” their neighbor’s cars.  Even if you install such communal stations, you will still have to allow individual stations at unit owner’s limited common element parking spaces if desired by some willing to pay the higher cost.

Section 718.113(9), Florida Statutes provides:  “The board of administration of an association may make available, install, or operate an electric vehicle charging station or a natural gas fuel station upon the common elements or association property and establish the charges or the manner of payments for the unit owners, residents, or guests who use the electric vehicle charging station or natural gas fuel station.  For the purpose of this section, the installation, repair, or maintenance of an electric vehicle charging stations or natural gas fuel station under this subsection does not constitute a material alteration or substantial addition to the common elements or association property.”

So, no material alteration or substantial addition membership vote is required for either the addition of individual or communal electric charging or natural gas fueling stations.

Condominium Associations

Owners in a gated community cannot access gate records

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Under Senate Bill 630 approved by the 2021 Florida Legislature which became effective as of July 1/ 2021, a new type of homeowners’ association records was added to the list that are not available or accessible to members.  “Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents” are now private and inaccessible to the members.  This would apparently include gate guest logs or video of guest vehicles entering the community.

Apparently spying on your neighbor or even spying on someone visiting your home is disfavored by the Florida Government.  Now we would assume this does not prevent the board or management’s ability to review the gate guest logs or videos for the purpose of determining who may be the perpetrator if illegal activity or damage has occurred within the community by a guest as the Association representatives would have a proper purpose as part of their job in operation and control of the community.  However, nosey neighbors cannot see these records.  For this prohibition to get into Senate Bill 630, apparently some serious spying or nosiness must have been going on in some community in Florida.  We sometimes see such problems arise in gated communities when ex-spouses or ex-boyfriend/girlfriend attempt, or succeed, in making unannounced visits.  Other times, someone may be running a business out of their house with delivery trucks or employees continually coming and going.

Other records that Section 720.303(5)(c), Florida Statutes already prohibited accessibility to members or parcel owners include:

  1)  Any record protected by the lawyer-client privilege.

  2) Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

  3) Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

  4) Medical records of parcel owners or residents.

  5) Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements and other personal identifying information of any person (However, an association may print and distribute to parcel owners a directory containing the name, parcel address, and all telephone numbers of each parcel owner except an owner may exclude his or her telephone numbers from the director by so requesting in writing to the association.  An owner may also consent in writing to disclosure of other contact information).

  6) Any electronic security measure that is used by the association to safeguard data, including passwords.

  7) The software and operating system used by the association which allows the manipulation of data.

Homeowners Associations

A sound legal foundation for your Condominium or Homeowners’ Association is important

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The collapse of the Champlain Towers building has brought renewed interest on structural building integrity to many Condo and HOA Associations.  We are seeing many Associations operating older buildings putting out bidding for new engineering structural review.

Such an engineering study will help insure the soundness of a building’s structural foundation.  However, what about an Association’s legal foundation?  Is the legal foundation sound when an Association is operating under old governing documents designed with the Developer in mind instead of the end users (purchasers) of the units?

Developer documents are drafted to assist the Developer in selling as many units as possible as quickly as possible so that the Developer can cash out and get on to building the next Development.

The Developer typically won’t be living in the project so there is no personal incentive to necessarily make the documents end user friendly. When there is no long term commitment and quick sale is the name of the game, such Developer documents many times will not require approval or disapproval of prospective purchasers or tenants or have well thought out protections to prevent owners from altering their units, homes, common element and limited common elements, or common areas or limited common areas without first obtaining the approval of the Board of Directors or an Architectural Review Committee. Adequate restrictions on pets, vehicles and guests may be non-existent or highly inadequate. These type restrictions may be left out by the Developer’s attorney drafting the documents because of the Developer’s client’s worry that they may inhibit or slow down sales.

If you limit pets or smoking, the Developer may believe sales to pet owners or smokers may be lost.  If you have approval processing of prospective purchasers or tenants, those individual with shaky backgrounds might not apply to purchase or lease.  If you prohibit recreational vehicles, boats or commercial trucks, that’s another group of potential buyers that could be lost.

Another problem with Developer documents is that they won’t necessarily reflect the current laws because the Developer drafter is using an old boiler plate, or many laws have changed since turnover of the project to the owners by the Developer.  The result of this deficiency is that the Board of Directors and Officers may follow what the outdated documents say only to find out later that they are violating current law on the matter as the law could have changed significantly since the documents were written.  This puts the Association in jeopardy of being sued by unhappy or dissident owners.

We get many calls from Association Directors and Officers who have old Developer documents because the documents are many times ambiguous and don’t address important matters adequately or clearly; such as who is to maintain, repair, replace or insure what parts of the units or homes, the limited common elements and the common elements or common areas (Association or Owner?).   This can drive up legal costs to the Associations in addition to the liability exposure to the Board.

The numerous problems trying to operate under old outdated documents can be solved by totally rewriting the Declaration of Condominium or Declaration of Covenants (for HOA’s), Articles of Incorporation and Bylaws of the Association.

The process usually takes from 3 to 9 months with legal counsel working closely with a document rewrite committee consisting of a few committee members with an interest in details involved with such a process.  The attorney will usually prepare the first draft for the committee’s review and input.  After the committee is satisfied with the product, it usually then moves to the board for Directors input and then input from any interested owners.  Finally, a formal proxy vote will be taken from the entire membership.  After approval of the members, any house rules and purchase and sales application forms will be updated to conform to the new documents.

Usually, once an Association has their new well written superior documents, legal counsel calls for opinions will wane with corresponding less to be spent on legal fees.  Although legal fees will have to be incurred for a rewrite, the savings in diminished future legal fees by having a solid legal document foundation for your Association is usually substantial.  In addition, Directors and Officers can sleep well once the Association has new documents that can be relied upon in running the Community.

Condos and HOA's

Surfside Towers Collapse contributed by yellow banana owners?

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We see some of the same decisions made year after year by some local Condominium boards. Whatever we do this year, let’s not raise our owners’ Assessments over last year’s amount. Usually, in such buildings, the reserves have been woefully underfunded with the owners opting to partially or fully waive the funding of Association reserves. This is the easiest way to keep the annual assessments from raising each year. If a necessary building repair expense arises, they can always special assess for that. These are typically older buildings with an older population of owners who are hoping to sell or die before any hefty assessments will come do. We call this the yellow banana crowd. In these buildings, the Directors see that they better not increase the assessments or they will be voted off the board.

In other buildings you have the usually younger, green banana folks, who want to live in their units for many years and want to keep their building in tip top shape so that their investment grows nicely and are willing to pay increasing annual assessments to do so.

The current law easily permits the conduct of the yellow banana owners and directors.  Section 718.112(f)2.a., Florida Statutes provides that: “In addition to annual operating expenses, the budget must include reserve accounts for capital expenditures and deferred maintenance.  These accounts must include, but are not limited to , roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. The amount to be reserved must be computed using a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance of each reserve item.  The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extensions of the useful life of a reserve item caused by deferred maintenance.  This subsection does not apply to an adopted budget in which the members of an association have determined, by a majority vote a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection.”

In taking the “optional” vote to reduce reserves or have no reserves, Section 718.111(f)4., Florida Statutes provides that the proxy question for the membership vote must say “in capitalized, bold letters in a font size larger than any other used on the face of the proxy ballot:  WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.”

From reading various reports about Surfside Towers, apparently after many years of putting off building structural repairs even after engineer warnings, the building’s board was finally levying special assessments to cover over 15 million dollars in building repairs.  This was, it appears now in hindsight, too little and much too late.

Association board, especially in older buildings, should take Surfside Towers as a wake-up call and start budgeting adequately for expected future repairs.  Nobody likes rising assessments year after year, but you can’t just keep kicking the can down the road.  Directors have a fiduciary (similar to paternalistic) duty to the owners to properly maintain the common elements of the building.  The board has the duty to prepare a fully funded budget each year and no one is requiring the board to put out a membership vote to waive or reduce the full funding of reserves.

If it has been a few years since you have had an engineering reserve study done on your building to make sure you have adequate budgets and adequate reserves, now may be the time to get a new reserve study done, start funding the Association reserves realistically, and making structural and preventive repairs on the building sooner rather than later.

Florida Legislature

New 2021 Legislation affecting Condominium, Cooperative and Homeowners’ Associations Part II

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This year two bills relevant to Community Associations (Senate Bills 630 and 56) became law effective July 1, 2021.  Last month we reviewed the provisions of Senate Bill 630. Today we will look at Senate Bill 56.  The review is the order presented in the Bill and not in any order of importance.

SB 56:  Applies to Condominium, Cooperative and HOA’s concerning collection of assessments by Associations and adds several procedural requirements before an association can recover attorneys’ fees in a collection matter.

Sending Out Invoices: The bill provides that if an association sends out an invoice for assessments or a statement of account, the invoice or statement must be delivered to the owners by first-class United States mail or by electronic transmission to an e-mail address maintained in the association’s official records. If an association decides to change the method of delivery of the invoice or statement, the association must deliver a written notice, by first-class mail to the owner’s last address as reflected in the records or to the property address, of the change to each owner, at least 30 days before the association sends the invoice or statement by the new delivery method. An owner must affirmatively acknowledge, electronically or in writing that the owner understands that the association will change its method of delivery of the invoice or statement before the association may change the method of delivery. The owner’s affirmative acknowledgment becomes a record of the association but is not available to inspection by other owners.

No Attorneys’ Fees in 1st Notice:  The bill further provides that an association may not require payment of attorneys’ fees related to a past due assessment without first delivering a written notice to an owner which specifies the amount owed to the association without an assessment of attorneys’ fees.  The association must give an owner the opportunity to pay past due amounts, within 30 days of the date of the letter, without imposition of attorneys’ fees.

Use Form and Follow Procedures:  The statute provides a form written notice for associations to use.  Most associations already provide such a notice, however, it is important to follow the procedural requirements for delivery of the notice.  A failure to do so may prevent the association recovering attorneys’ fees in a collection case. For example, the bill provides that the late notice must be sent first-class United States mail to the owner, at the last address of the owner as reflected in the association’s records and, if this address is not the property address, the late notice must also be sent by first-class mail to the property address.  A rebuttable presumption that an association mailed a notice in accordance with the bill is established if a board member, officer, agent or property manager attests in a sworn affidavit to such mailing.

45 Day Notice of Intent to File a Lien:  In condominium and cooperative associations, the bill provides that a lien may not be filed against a property without giving the owner 45 day notice of the association’s intent to file a lien.  The 45-day notice period will now be the same as the existing requirement in homeowner associations.

Condos and HOA's

New legal protection from COVID lawsuit for condos and HOA’s

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On March 29th, Florida Governor Desantis approved and signed Senate Bill No. 72 to protect Business Entities from COVID lawsuits in Florida. The new law became effective on that date.

As a basis for the new laws the Bill says that: “The Legislature finds that the COVID-19 outbreak in this state threatens the continued viability of certain business entities, educational, institutes, governmental entities, and religious institutions that contribute to the overall well-being of this state. The threat of unknown and potentially unbounded liability to such businesses, entities, and institutions, in the wake of a pandemic that has already left many of these businesses, entities, and institutions vulnerable, has created an overpowering public necessity to provide an immediate and remedial legislative solution. Therefore, the Legislature intends for certain business entities, educational institutions, governmental entities, and religious institutions to enjoy heightened legal protections against liability as a result of the COVIC-19 pandemic. The Legislature also finds that there are no alternative means to meet this public necessity, especially in light of the sudden, unprecedented nature of the COCID-19 pandemic. The Legislature finds the public interest as a whole is best served by providing relief to these businesses, entities, and institutions so that they may remain viable and continue to contribute to the state.”

The Bill first states that “Business entity” includes a corporation not for profit as defined in s. 617.01401.  Not for profit business entities include Condominium and Homeowners’ Associations.

The new law then says that in order for a court not to dismiss a COVID-19 legal complaint, that the “plaintiff must submit an affidavit signed by a physician actively licensed in this state which attests to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s COVID-19 related damages, injury, or death occurred as a result of defendant’s acts or omissions.”

How a physician can make a determination within a reasonable degree of medical certainty that a person got COVID on Condominium or Homeowners’ Association property as a result of the acts or omissions of those running the Association sounds like a very heavy lift.

Even if this lift can arguably be made, then the court must determine whether the “defendant made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.”

As far as I can tell, most all Condominium and Homeowners’ Associations enacted emergency rules requiring face masks and social distancing on common elements or common area property.

So if the court decides the Association made such a good faith effort, “the defendant (Association) is immune from civil liability.”

If the court decides the Association did not make such a good faith effort, “the plaintiff may proceed with the action. However, absent at least gross negligence proven by clear and convincing evidence, the defendant is not liable for any act or omission relating to a COVID-19-related claim.”  The burden of proof is upon the plaintiff to demonstrate that the defendant did not make a good faith effort and the claim must be brought within 1 year.

Proving gross negligence by clear and convincing evidence is also very hard to do. Gross negligence has been defined at “Wordnik.com” as “negligence evidencing a total or near total disregard for the rights and welfare of others and for the consequences of an act.”

You maybe could reach this burden of proof if an Association advertised and held a “lets spread COVID” party and specifically invited people known to be actively infected with COVID at the time.  We are unaware of anything like this happening at Condominium or Homeowners’ Associations in Southwest Florida.

Although there may be an unusual fact pattern out there wherein an Association in Florida actively engaged in promoting the spreading COVID-19, I think it can be safe to say under this new law that it will be a rare occasion in Florida wherein a Condominium or Homeowners’ Association will ever be found guilty in a COVID-19 lawsuit if attempted or brought.

Condos and HOA's

Should a Condo or HOA require proof of vaccination to use the common facilities?

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Now that a lot of the population is getting a COVID vaccination, we are hearing that a few Boards of Directors of area Condominium or Homeowners’ (HOA) Associations are floating the idea of considering requiring proof of vaccination for owners, family members, tenants and guests in order to use the common area amenities such as the clubhouse, social room, fitness room or swimming pool.

For the following reasons we do not believe it a good idea to try to implement such a requirement:

Purchasers of Condominium Units and Single Family Homes in a Homeowners’ Association are granted an easement and right to use all of the common facilities along with all the other owners in the community as are the purchaser’s family members, guests and tenants.  Only allowing those with proof of vaccination to use the facilities would arguably be a breach of this substantive right granted to each owner to use the facilities.

Allowing some residents to use the facilities who provide proof of vaccination while disallowing the rest would arguably create two classes of citizens in the community which some Florida Courts have found to be prohibited housing restrictions.

Showing proof of vaccination could be considered disclosure of a medical record of the person. Per relevant Florida Statutes, such medical records in an Association’s possession are not to be accessible to unit owners or homeowners. Access to such vaccination records could easily be breached thereby setting up the Association for a possible lawsuit.

If a person chooses not to be vaccinated because of religious reasons, requiring proof of vaccination could expose the Association to religious discrimination.

The governor of Florida has passed an Order prohibiting business from requiring vaccination passports.  A Condominium or Homeowners’ or Coop Association is a not-for-profit corporation and must follow many Florida business regulations so it is arguably a business.

The State Legislature has also passed laws this session to provide a lot of immunity protection to businesses from COVID lawsuits.

So there are many potential pit falls that could bestow an Association if it tries to require proof of vaccination to use the common facilities and it litigation ensued, it could become very costly.

The real question then is whether there is any great safety or security advantage to requiring vaccination passports for use of the common facilities in a community in light of the strong political push back from some owners and possible litigation the Association may face in doing so.  Masking and social distancing has already been in place for many communities.  The changes of vaccinated individuals getting COVID are very slim and those who choose not to vaccinate have made a personal decision to accept the risk of getting sick or deathly ill from COVID.  It would be extremely hard to prove that someone got COVID using the common facilities of the Community.

It appears the downside to a community requiring vaccine passports far outweighs the marginal possible benefit of requiring them.

If an Association board still wanted to require such vaccine passports, we would suggest that it would need to at a minimum amend its governing documents, with a full vote of the membership in the community, as a board vote would have to be “reasonable” and many would consider such a passport requirement as unreasonable.  However, an amendment to the Declaration or Bylaws with a membership vote would not have to be reasonable as long as it is not arbitrary, capricious or unconstitutional.

Condos and HOA's

In a Condo who insures what and who pays for the damage?

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Questions often arise when there is an insurable event (such as when a water or sewer pipe bursts), who pays for the damage?  The Condominium Association or the Unit Owner.

The answer will depend upon what the damaged items are.  Section 718.111(11)(f), Florida Statutes, provides that:

  “(f) Every (Condominium Association) property insurance policy issued or renewed on or after January 1, 2009, for the purpose of protecting the condominium must provide primary coverage for:

1. All portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications.

2. All alterations or additions made to the condominium property or association property pursuant to s. 718.113(2).

3. The coverage must exclude all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Such property and any insurance thereupon is the responsibility of the unit owner.”

So, the Association’s insurance policy covers the structures of the building(s) as originally installed or replaced plus all approved alterations or additions to the building(s).  The Association policy also covers the unit A/C equipment (this was a change to the Statute after Hurricane Irma to insure that all the air conditioning is repaired and turned on as quick as possible after a hurricane to prevent mold growth).  The unit owners’ policies, if obtained, cover their personal property and some fixtures within the unit and floor, wall and ceiling coverings. The drywall in the units and the stuff behind the drywalls is the Association, wherein the paint or wall paper on the drywall is insured by the unit owner.

  While the Association is required to carry insurance on the structures, the Statute does not require unit owners to carry a unit policies and many unit owners decide to self-insure their unit and not carry unit insurance unless their Declaration of Condominium requires them to do so (most do not).  Many owners who do not have a mortgage decide to take the risk of self-insuring their condominium unit.

Another question that often arises is who pays for the dry-out of the unit (fans etc.) from the pipe burst as the Statute is silent on this.  As both the Association benefits from the dry-out (less chance of mold behind the walls) as well as the unit owner (property saved from turning moldy green or black) the dry out cost should be shared proportionally between the Association and the Unit Owner depending upon how much they benefit.  If it cannot be determined a proportional share, the dry out cost is usually shared equally- 50/50.

  Who pays the Association deductible for an internal unit drywall repair (unit perimeter drywall is Association responsibility) can be a complicated answer and depends upon whether there was ever a deductible opt-out vote of the members or not. If that question arises, you should check with your Association’s legal counsel.

For non-insurable event damage (such as mold growth from a slow water leak over an extended period of time), you will need to look at your governing documents maintenance, repair and replacement responsibilities usually contained in your Declaration of Condominium to determine whether the Association or the owner must pay for the repair.

Condominium Associations

Unit owners’ right to speak, tape record or videotape meetings

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This is the time of year during Season is when most Condominium Associations have their annual members meeting as well as board meetings.

For some reason we see a scattering of Condominium Association directors who believe these Association meetings are for the directors to talk, argue, and make decisions and the members are there at the meetings just to listen in.  This belief could be coming from directors who are used to the corporate world and procedures used in private corporate meetings.

However, this is not the case in Florida as there are specific statutory “sunshine” provisions allowing for most all Association meetings to be open to the members with the ability for the members to speak at the meeting and to audio or video record them.  Exceptions to open Board meetings are only for meetings of the Board to discuss personnel matters or board meetings with Association legal counsel to discuss proposed or pending litigation matters.  For these two exceptions, the meetings can be closed to the members (executive session).

Concerning annual and special member’s meetings, Section 718.112(2)(d)7., Florida Statutes provides that: “Unit owners have the right to participate in meetings of unit owners with reference to all designated agenda items. However, the association may adopt reasonable rules governing the frequency, duration, and manner of unit owner participation.”

Section 718.112(2)(d)8., Florida Statutes provides that:  “A unit owner may tape record or videotape a meeting of the unit owners subject to reasonable rules adopted by the division.”

For board meetings, Section 718.112(2)(c) provides that:  “Meetings of the board of administration at which a quorum of the members is present are open to all unit owners.  Members of the board of administration may use e-mail as a means of communication but may not cast a vote on a matter vial e-mail.  A unit owner may tape record or videotape the meetings.  The right to attend such meetings includes the right to speak at such meetings with deference to all designated agenda items.  The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting.  The Association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.”

When the statutory section talk about the “Division”, it means the “Division of Florida Condominiums, Timeshares, and Mobile Homes”. The Division has adopted the rules discussed in these Chapter 718 Sections as follows:

61B-23-002(9)&(10), Florida Administrative Code provide: “(9) Subject to reasonable restrictions, any unit owner has the right to speak at unit owner meetings, with respect to all designated agenda items. On or after April 1, 1992, subject to reasonable restrictions, any unit owner has the right to speak at board meetings and committee meetings with respect to all designated agenda items.

(10) Any unit owner may tape record or videotape meetings of the board of administration, committee meetings, or unit owner meetings, subject to the following restrictions:

(a) The only audio and video equipment and devices which unit owners are authorized to utilize at any such meeting is equipment which does not produce distracting sound or light emissions.

(b) If adopted in advance by the board or unit owners as a written rule, audio and video equipment shall be assembled and placed in position in advance of the commencement of the meeting.

(c) If adopted in advance by the board or unit owners as a written rule, anyone videotaping or recording a meeting shall not be permitted to move about the meeting room in order to facilitate the recording.

(d) If adopted in advance by the board or unit owners as a written rule, advance notice shall be given to the board by any unit owner desiring to utilize any audio or video equipment.

(e) Unit owners are entitled to tape record or videotape board meetings and committee meetings occurring on or after April 1, 1992.”

Many Condominium Associations have adopted reasonable written rules govering the frequency, duration, and manner of unit owner participation in members meetings and board meetings and if your Condominium Association has not adopted such written rules it should consider doing so in order to ensure your meetings run smoothly.

Such rules can limit a member speaking to no more than three (3) minutes per agenda item unless the person running the meeting allows for an exception for a member to speak longer.  The Association can limit such speaking to either at the beginning of the meeting, during the agenda topic or at the end of the meeting.  The Association can require a member to sign-up to speak before the meeting begins.

Associations should also consider limiting the member participating to the member making a statement and not asking numerous questions of the board during their speaking time.  A protracted question and answer session with a member during their speaker time can quickly run past the three (3) minute limit wherein the member is hogging meeting time and directors and/or management are being put on the spot to answers questions they may not have good responses for without further research.  If the directors don’t readily know an appropriate response to a member’s question, it should tell the member that the board will take the question under advisement and answer the member at a later time after research or review.

Condominium Associations

Condo director’s term limits and other qualifications for the board

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Back in 2018, a bill passed the Florida Legislature that said:  “A board member may not serve more than 8 consecutive years unless approved by an affirmative vote of unit owners representing two-thirds of all votes cast in the election or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy”

This law become effective July 1, 2018. Since then, we periodically get calls, especially around election time, as to whether board service before 2018 counts towards the 8 years.

In many condominium associations, directors have served more than 8 years and the calls we get concern whether these directors who have served more than 8 years can run again for the Board.

Although there were mixed signals from the Florida Division of Condominiums, Timeshares and Mobile Homes of the Department of Business and Professional Relations, the Division finally stated last summer that because the 8 year term limit law did not come into effect until 7/1/2018, the 8 years of service limit did not commence until after 7/1/2018.

Therefore, no long term Condominium Association director has to worry about the 8 year limit until 7/1/2026.

Chances are, this term limit may very well be repealed before 2026.  So nothing to worry about any long term board member serving again for the board until at least 2026.

There are still other qualifications for a condominium unit owner to run for the board.  Section 718.112(2)(d)2., Florida Statutes, provides: “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 vacancy. A unit owner in a residential condominium desiring to be a candidate for board membership must comply with (submitting their name as a candidate on time) and must be eligible to be a candidate to serve on the board of directors at the time of the deadline for submitting a notice of intent to run in order to have his or her name listed as a proper candidate on the ballot or to serve on the board.”

“A person who has been suspended or removed by the division under this chapter, or who is delinquent in the payment of any monetary obligation due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot.  A person who has been convicted of any felony in this state or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed in this state, is not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years as of the date such person seeks election to the board.”

It is important before placing a candidate’s name on the election ballot to make sure that person does not owe any money to the Association (assessments, fines, dues etc.) or is not a convicted felon.