This week the blog is pretty important too. All too often I am
seeing the incorrect number of Board members serving on a
condominium association board. Florida Statute 718.112 states:
(2) REQUIRED PROVISIONS.—The bylaws shall provide for the
following and, if they do not do so, shall be deemed to include
the following:
(a) Administration.—
1. The
form of administration of the association shall be described
indicating the title of the officers and board of administration
and specifying the powers, duties, manner of selection and
removal, and compensation, if any, of officers and boards. In
the absence of such a provision, the board of administration
shall be composed of five members………..
As you can
see, in order to determine how many directors should serve on
your board, you look to your bylaws. The bylaws almost always
states the number of directors required to compose the board.
If the bylaws are silent, the statute says the number is
automatically set at 5.
So many of you however have provisions in your documents that do
not require a specific, exact number of directors to serve.
Instead, your bylaws state something like “the number of
directors shall not be less than 3 nor more than 9, the exact
number to be determined “each year” or “by the board” or by “the
members.” So, when your docs read this way, what is the correct
number? Arbitrators have answered this question for us.
Arbitration cases have consistently held that, when the
governing documents provide a
range
for the
number
of
directors,
such as “not
less than
x but not
more than
y”,
the statute sets the
number
at five.
See Kamber v. Kenilworth Condominium Association, Inc.,
Arb Case No. 2003-06-2726, Summary Final Order (July 23, 2003).
So there you have it. If there is a range in your documents
regarding the number of directors, the number is set at five.
If you don’t like the fact that you now have a five member
board, an Association always has the power to reset the
number
by a properly noticed membership meeting to amend its by-laws,
provided that the
number
cannot be amended in the same meeting as the annual election.
Smith v. Ocean View Association, Inc., Arb. Case No.
97-0040, Summary Final Order (June 27, 1997).
Because the HOA Statute does not contain a provision that sets
the number of directors at 5, in the absence of language in the
bylaws, this procedure does not apply in HOAs.
If you have any doubt about how many members should be serving
on your board, ask the attorney for the association. Trust me,
it’s cheaper to ask the attorney before the mistake is made
rather than having to fix the mistake once the mistake is made.
