Q: The president of our condominium association has been a board member for over 10 years. He just put his name in to run again. Many people are content to let this person run things. I think changes need to be made. Is he allowed to run? (R.J., via e-mail)
A: Yes. The recent amendments to the condominium statute establishing 8-year term limits have caused a great deal of discussion within the industry. I have addressed this issue in a couple of my recent columns see (Board Member Term Limit Law Sparks More Controversy; October 14, 2018) and (New Term Limit Law Not Retroactive: August 19, 2018). My previous columns are generally available online.
As discussed at length previously, there remains a serious question as to whether this law should be applied retroactively. As noted in my October 14th column, the Division of Florida Condominiums, Timeshares, and Mobile Homes, the state agency that has certain regulatory oversight over condominiums, has concluded in at least one case that the law does apply retroactively.
Even if the Division’s position is correct (and I personally do not believe that it is), “termed out” directors still have the right to put their name in for election. If there are insufficient candidates to require a contested election, they are entitled to be seated on the board. If there is a contested election, and they receive at 2/3rds of the votes cast, they are likewise entitled to be seated under the current law.
Q: We have an owner in our condominium who is always fighting with the board. She has now decided to run for the board. Last year, she was fined $50 by the association for a parking infraction and never paid the fine. Does she have a right to be put on the ballot? (E.S., via e-mail)
A: Probably not. Section 718.112(2)(d)2 of the Florida Condominium Act provides that a person who is “delinquent in the payment of any monetary obligation due to the association is not eligible to be a candidate for board membership and may not be listed on the ballot.” Although the term “monetary obligation” is not defined in the statute, it is typically construed to include unpaid fines.
Q: Our condominium association is having a “pickleball war.” The board recently allowed one of the two tennis courts to be used for pickleball, and purchased all of the appropriate nets, striping tape, and some pickleball equipment. The few tennis players that we have are complaining, and claim that they have legal rights to the original amenity. What do you think? (J.L., via e-mail)
A: Although historical case law on the issue is a bit inconsistent, and the language of your individual declaration of condominium plays a substantial role, it is fairly certain that allowing the tennis court to be used for pickleball would be considered a “material alteration” of the common elements or association property.
The current version of the Florida Condominium Act provides that there can be no material alterations of condominium common elements or association property except as provided in the declaration. If the declaration is silent, 75 percent of all voting interests must approve the change.
However, many declarations contain their own material alteration provision. For example, a common provision would enable the board to authorize materials alterations up to a stated dollar amount (5 percent of the annual budget is a threshold I commonly see), and then a unit owner vote is required. In such cases, given my understanding that the actual costs affiliated with “converting” a tennis court for pickleball use are fairly nominal, your board of directors may well have the authority. Since this involves an interpretation of your individual condominium documents in tandem with state law, the association should discuss this matter with its legal counsel.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.
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