Question: I have a question about who can serve on the board of directors of a condominium association. Our association’s bylaws specify that directors must be “members” of the association. The bylaws also specify that only owners of units are members. In our association, we have a number of units that are titled in only one spouse’s name or in a trust. Therefore, it appears to me that the other spouse in those situations is not eligible to be elected to the board. Assuming my conclusion is right, can we amend the bylaws to allow spouses of owners/members to become directors, or is this a Florida law requirement? Thanks. B.D. (via e-mail)
Answer: The Florida Not-For-Profit Corporation Act simply states that directors of corporations must be natural persons at least eighteen years of age or older. They need not be residents of this state nor members of the corporation. The statute further provides that the articles or bylaws may prescribe additional qualifications for directors.
With respects to units owned in trust, Section 617.0802(2) of the non-profit statute provides that if eligibility to serve as a member of the board of directors of a condominium association is restricted to membership in the association, the “grantor” of a trust, or any “beneficiary” of a trust which owns a unit, shall be deemed a “member” of the association and eligible to serve as a director of the association. However, to be eligible, a beneficiary must occupy the unit. In other words, when a unit is owned in trust, either the grantor or beneficiary of the trust is eligible to run for the board, so long as the beneficiary resides in the unit.
The Florida Condominium Act says that “any unit owner or other eligible person” may be a candidate for the board of directors. The law goes on to say that a person is not eligible for board membership if the person has been suspended or removed from the board by the State, is delinquent in the payment of monetary obligations to the association, or has been convicted of a felony, unless his civil rights have been restored for at least five years as of the date such person seeks election to the board.
Therefore, so long as a person is at least eighteen years old and not disqualified by the three eligibility criteria in the Florida Condominium Act, the person is eligible to run for the board, unless disqualified by the articles or bylaws. If the articles and bylaws are silent regarding board eligibility, then a non-unit owner would be eligible to run.
You have advised that your bylaws do restrict board eligibility to “members” of the association, and that only unit owners are “members.” Therefore, in answer to your question, for units owned in the name of one spouse, but not the other, only the spouse on the deed would be eligible for the board. With respect to a unit owned in trust, the statute mandates that either the grantor or a beneficiary that resides in the unit would be eligible for the board. Essentially, the law provides broader eligibility in trust situations than where title is held by an individual spouse.
Limiting board eligibility to members is not required by law, and therefore the association could amend the bylaws to expand board eligibility to non-members, including spouses of members, if desired. My personal drafting practice, which I have found is acceptable to most associations, is to permit the spouse of a member to serve on the board. Married couples often choose to title the unit in one spouse’s name for estate or tax planning reasons, but both consider themselves beneficial “owners” as would be the case in a trust.
Also keep in mind that co-owners of a unit cannot simultaneously serve on the board, with certain exceptions for when a full board cannot otherwise be seated.