There have been some interesting recent developments involving the new law establishing term limits for condominium board members, which has been the subject of at least two of my recent columns.
The Florida Condominium Act was amended effective July 1, 2018 to provide that a board member may not serve more than 8 consecutive years unless approved by an affirmative vote of unit owners representing two-thirds of all votes cast in the election, or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.
A similar law was enacted in 2017, but it only applied the 8 year term limit to two-year board terms. Since the law’s adoption in 2017, and following its revision in 2018, it has been unclear how the statute is intended to apply to current board members’ prior terms of service. There is no language on the face of the statute which indicates that the Legislature intended the term limit provision to be “retroactive.” Such language is generally a legal prerequisite to applying statutory amendments retroactively.
While the Division of Florida Condominiums, Timeshares, and Mobile Homes (“the Division”), had not issued any formal rulings on the matter, it was generally understood the Division’s position after the enactment of the 2017 statute was that since there was no language in the statute to indicate the law was intended to be retroactive, it was not retroactive. This would presumably mean that the eight year term limits would only start accruing with the seating of board members after July 1, 2018, the effective date of the new law.
It now appears the Division may have changed its position on the application of the statute as set forth in a recent “Declaratory Statement.” The Declaratory Statement was issued at the behest of a Marco Island condominium association who stated that they had an upcoming election and wanted to know if any director who sought reelection, but had already served 8 years, could be disqualified. The Division essentially quoted the statute verbatim and answered in the affirmative, stating that any director who had accumulated 8 years of continuous service would be subject to the new term limit law. The question of retroactive application of the law was not analyzed in the decision.
The effect of this ruling is a matter of some debate within the legal community. Declaratory Statements by law are only applicable to the parties to the actual proceeding, and are not to be used by administrative agencies to pronounce new rules or to be used for general statutory interpretation (which requires its own distinct process).
Setting aside the legal correctness of the decision as applied to that particular condominium, it remains unclear how or whether it will reverberate beyond this specific ruling. At the least, it may provide insight as to how the Division may consider the application of the term limit statute in the event the issue were brought before it in an adversarial setting. This could occur, for example, as the result of a challenge to an election where an incumbent board member is seated after having served more than 8 consecutive years and not receiving at least two-thirds of the votes cast in the election.
It is important to remember that even if the law is ultimately determined to be retroactive (and I remain of the opinion it should not be so construed) the statute does not impose a term limit in the strictest sense, as there are exceptions.
Stay tuned for further developments.