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Delinquent Board Members May be Required to Leave Positions

Q:        Our annual meeting and election is coming up and our board has been discussing the relevant procedure. Is it possible for us to go through simpler procedure because we are a smaller condominium association? (S.W. via e-mail)

A:        Possibly, if your association is comprised of 10 or less units and the unit owners vote to amend the bylaws in order to “opt out” of the election requirements in the Condominium Act.

The Condominium Act sets out the procedures for noticing and holding the annual meeting and election of directors. Generally, condominiums must follow certain notice requirements as required by the Act, such as providing for first notice sent to members 60 days in advance of the annual meeting.

However, if your condominium association is made up of 10 or less units, the association can amend its bylaws to provide for different voting and election procedures than provided by Section 718.112(2)(d)10, Florida Statutes. For example, the alternate procedures may provide for elections to be conducted by limited or general proxy.

In order to “opt out” of the statutory election requirements, a majority of the total voting interests must vote to adopt different voting and election procedures in the bylaws, even if the bylaws contain different amendment procedure.

Q:        In a homeowners’ association, can a board member be suspended from office for late payments? (L.B. via e-mail)

A:        Possibly, but it will depend on how delinquent the board member’s payments are.

Both the Condominium Act and the Homeowners’ Association Act provide similar remedies to address the issue of delinquent directors.

The Condominium Act, Section 718.112(2)(n), states that a director or officer who is more than 90 days delinquent in the payment of any monetary obligation due to the association shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law.

The Homeowners’ Association Act, Section 720.306(9)(b), contains a similar requirement, but the restriction applies to board members, and the person serving as a board member who becomes delinquent is deemed to have abandoned his or her seat on the board, creating a vacancy on the board to be filled according to law.

Therefore, in the homeowners’ association context, if a director is more than 90 days delinquent on any payment to the association, the director is deemed to have abandoned their board seat. If this occurs, the director’s seat may be filled by an affirmative vote of a majority of the remaining board members.

Q:        I own a home in a small homeowners’ association with 24 lots. At a recent meeting, there was a statement made that because we are a small association, we are not subject to the Homeowners’ Association Act. Is this correct? (S.I. via e-mail)

A:        There is no minimum size requirement in the Homeowners’ Association Act. Rather, Section 720.301(9) defines homeowners’ association, which are subject to the Act, as a corporation responsible for the operation of a community or mobile home subdivision in which the voting membership is made up of the parcel owners or their agents, or a combination thereof, and where membership in the association is mandatory as a condition of ownership, and where the association has the right to impose assessments that, if unpaid, may become a lien on the parcel. If your association meets the definition of an “association” as defined by the Act, then your association is subject to the provisions of Chapter 720. It does not matter if your association is 10 lots or 1,000. In my experience, some older communities have governing documents which do not contain all of the requirements of Section 720.301(9), particularly if the documents do not provide the association with a right to impose a lien. Therefore, in order to determine if your association meets the definition as provided in the statute it may be necessary to have legal counsel review your governing documents. However, the size of your community would not be relevant.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@bplegal.com. Past editions may be viewed at floridacondohoalawblog.com

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