BackerReport )
A newsletter addressing issues of concern to South Florida Community Associations October 2008
Articles In This Issue
  • New Condo Election Requirements in Effect
  • Back Issues of BackerReport Available Online
  • 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.


    New Condo Election Requirements in Effect

    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.

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