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BackerReport is a periodical addressing topics of interest to community associations in South Florida and is provided as a service to the clients and friends of Backer Law Firm, P.A. All articles are written by attorneys of Backer Law Firm, P.A. (unless otherwise indicated) and are protected by copyright. It is important to note that court decisions discussed in this newsletter are sometimes subject to change as the parties pursue further appeals or other remedies. The articles that discuss court cases in this newsletter are based upon the courts' decisions that are released when the newsletter was written.
Since many condominiums are now planning for
their annual meetings, this is a good time to
remind managers, directors and unit owners
seeking to serve on their condo's board
directors about the requirements of the
Condominium Act. Since last year's annual
meeting and election, the Florida Legislature
added some new requirements to the nomination
and election procedures for condominiums.
These changes were described in our July,
2008 BackerReport. These changes do
not apply to homeowners associations; just
condos.
Section 718.112(2)(d), Florida Statutes
describes the procedures for nominating and
electing directors. Among the changes to
the statute is a new requirement that any
unit owner desiring to be a candidate for
board membership must comply with
subparagraph 3 of that statute which provides
for submission of a certification form
provided by the Florida Division if
Condominiums, Timeshares and Mobile Homes
attesting that he or she has read and
understands, to the best of his or her
ability, the governing documents of the
association and the provisions of this
chapter and any applicable rules. A link
to the form created by the Division has been
provided at the bottom of this issue for your
use.
The statute requires that, not less than 60
days before a scheduled election, the
association shall mail, deliver, or
electronically transmit, whether by separate
association mailing or included in another
association mailing, delivery, or
transmission, including regularly published
newsletters, to each unit owner entitled to a
vote, a first notice of the date of the
election along with the certification form
concerning the candidates' understanding of
the association's documents and rules. The
requirement to mail the certification is new
this year.
Just as in prior years, any unit owner or
other eligible person desiring to be a
candidate for the board must give written
notice to the association not less than 40
days before the scheduled election. The
statute requires that the second written
notice of the election and agenda be mailed,
delivered, or electronically transmitted to
all unit owners entitled to vote together
with a ballot which shall list all
candidates. Upon request of a candidate, the
association must include an information
sheet, no larger than 81/2 inches by 11
inches, which has been furnished by the
candidate not less than 35 days before the
election, along with the signed certification
form with the mailing, delivery, or
transmission of the ballot. The inclusion of
the certification form is new for this year.
Though the statute is oddly worded and does
not clearly mandate that the signed
certification be mailed with the ballot if it
is not requested by the candidate, since the
statute provides in Section (d) 1 that
candidates must comply with the certification
requirement, it is prudent to mail the signed
forms with the ballots whether the candidate
has asked that it be done or not.
The statute requires that the annual meeting
of the unit owners held at the location
provided in the association bylaws and, if
the bylaws are silent as to the location, the
meeting is required to be held within 45
miles of the condominium property. The
distance requirement does not apply to an
association governing a timeshare
condominium. Unless the bylaws provide
otherwise, a vacancy on the board caused by
the expiration of a director's term shall be
filled by electing a new board member, and
the election shall be by secret ballot;
however, if the number of vacancies equals or
exceeds the number of candidates, no election
is required.
The statute has been amended to provide that
the terms of all members of the board shall
expire at the annual meeting and such board
members may stand for reelection unless
otherwise permitted by the bylaws. In the
event that the bylaws permit staggered terms
of no more than 2 years and upon approval of
a majority of the total voting interests, the
association board members may serve 2-year
staggered terms. If no person is interested
in or demonstrates an intention to run for
the position of a board member whose term has
expired according to the provisions of the
statute, such board member whose term has
expired shall be automatically reappointed to
the board and need not stand for reelection.
The statute has been amended to provide
that, 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. The statute has also been
amended to provide that a person who has been
suspended or removed by the Division or who
is delinquent in the payment of any fee or
regular assessment for more than 90 days is
not eligible for board membership. 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 that
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 a period of no less
than 5 years as of the date on which such
person seeks election to the board. The
validity of an action by the board is not
affected if it is later determined that a
member of the board is ineligible for board
membership due to having been convicted of a
felony.
The new requirements of the statute may be
traps for those who do not become familiar
with them. Read the provisions of Section
718.112, Fla. Stat. and the applicable
provisions of the Administrative Code to be
sure you are in compliance. When in doubt,
contact your association's attorney.
You may obtain back issues of BackerReport online by going to our website www.BackerLawFirm.com. Click the image above. |
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