Board Eligibility: Who Is Allowed To Run In Community Association Elections And Serve On The Board Of Directors?

By Hans Wahl, Esq posted 03-12-2019 12:15

  
Oftentimes, the eligibility requirements for serving on a condominium association’s board of directors is overlooked during election season.  This oversight can become a headache for associations if someone is elected to the board who was not eligible in the first place.  This post will discuss the limitations on who may serve on the board of directors for a condominium association.

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Board Eligibility

The rules for eligibility are found within the Florida Condominium Act along with the association’s governing documents.  The Florida statutes provide a minimum threshold for eligibility, while many association governing documents provide additional eligibility criteria.  First, to serve on the board of directors, the individual must be at least eighteen (18) years old.  This is found in the Florida Not For Profit Corporation Act, Section 617.0802, Florida Statutes, which applies to condominium associations due to them being established as non-profit corporations.

One of the most common questions involving eligibility, which is answered by the Florida Condominium Act, Section 718.112(2)(d)(2), Florida Statutes, is whether co-owners may serve on the board of directors at the same time.  Generally, the answer is no, co-owners cannot serve at the same time.  However, there are two exceptions to this rule: (1) if the co-owners own more than one unit (then each could run on behalf of a different unit) or (2) if there are not enough eligible candidates to fill the vacancies. In these two limited situations, co-owners may serve on the board of directors at the same time.

Additional Reasons Someone May Not Serve On The Board Of Directors

The owner must not be delinquent in his or her payment of assessments to the association either.  See Section 718.112(2)(d)(2), Florida Statutes.  This makes sense.  If a person cannot comply with his or her payment obligations to the community association then he or she has no right to lead that association by holding a seat on the board of directors.

If a person has been previously removed from an association’s board of directors by the Florida Department of Business and Professional Regulation, Division of Condominiums, then that person is ineligible to run.  Finally, Section 718.112(2)(d)(2), Florida Statutes, provides limitations on the ability of felons to serve on the board of directors, which states as follows:

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.

Keep in mind that in addition to the aforementioned statutes, the association’s governing documents must also be reviewed for additional limitations and requirements.  For example, the Florida Statutes are silent as to whether a director must also be an owner within the association.  Some association declarations make this a requirement while others do not.   Also, if a sitting board member becomes more than 90-days delinquent in the payment of any monetary obligation due to the association then he or she is deemed to have abandoned her position and is no longer on the board.

Final Considerations After Community Association Elections

When it is discovered that someone is on the board who should not be due to eligibility issues, one concern is whether actions taken during the ineligible director’s term of service will be reversed.  Section 718.112, Florida Statutes, only addresses one of the scenarios.  It states that if the director was ineligible due to having a felony conviction, the validity of any action taken by that board is not affected.  However, there is a lack of guidance on what happens when a director was ineligible for other reasons and/or where a director becomes ineligible in the middle of his or her term but remains in the position.  Generally, reversing the actions of the board of directors can create serious financial consequences.  Unless the association is greatly harmed by any given decision made by an ineligible board member, those decisions are likely to remain unchanged.   An association should consult with a community association attorney to discuss possible options when a director is discovered to be ineligible.

Authors:
Hans C. Wahl, Esq.
Christopher M. Cobb, Esq.
Brittany N. Snell, Esq.


To read more about Board of Directors eligibility, elections and related responsibilities, read these blog articles:

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