Last week we blogged about some confusion
that exists in the new condo crime bill. Make no mistake, these
“glitches” need to be fixed during the next legislative session
if the intent of these statutes are ever to be realized. Until
then, because of the ambiguities contained therein, rest assured
that attorneys will interpret these statutes in the manner that
serves the interest of their respective clients, whether it be
the association, incumbent board members or other unit owners
trying to get on to the board.
Let’s talk about another ambiguity. The new
statute states that:
A board member may not serve more than
four consecutive 2-year terms, unless approved by an affirmative
vote of two-thirds of the total voting interests of the
association or unless there are not enough eligible candidates
to fill the vacancies on the board at the time of the vacancy.
I have been asked a
hundred times already if a board member who serves only one year
terms can get elected for an unlimited amount of one year
terms. Suppose this is now their 10th consecutive
year? Can they run again for a one year term? Although I
believe the intent of the statute was to prevent someone from
serving more than 8 consecutive years on the Board, that is not
what this new statute says at all. Clearly, it allows board
members who get elected each year to serve an unlimited number
of one year terms. Florida law requires that a statute be given
its plain and ordinary meaning and this statute only addresses
directors who get elected for two year terms. So, directors who
serve one year terms…….keep running.
To make matters more
confusing, even if a director has already served four
consecutive two-year terms, the new statute still allows them to
serve if approved by an affirmative vote of two-thirds of the
total voting interests of the association or if there are not
enough eligible candidates to fill the vacancies on the board at
the time of the vacancy. The question is…..When is
this two-thirds vote to be taken? Before the actual election,
meaning the director needs the permission of two-thirds of the
total voting interests in order to run? Or, does it mean the
director can run in the election without prior permission, but
cannot get on the Board unless two-thirds of every eligible
voter votes for him or her?
Clarification is obviously
required, but to me, there is a larger question here. Should
there be a limit as to how many consecutive years someone can
serve on the board? If the volunteer is doing a great job why
not let them stay? If they are doing a poor job, the voters can
vote them out. But why make it mandatory that they quit, when
it is often times impossible to find new volunteers for a
non-paying position? Why not let the owners in that condominium
decide what is in their own interests instead of the government
forcing its decision on them? This is especially true when a
term limit provision is permitted in the bylaws. See Goldberg
v. Admiral's Port Condo. Ass'n, Inc. Arb. Case No.
2014-01-3892, Summary Final Order (July 9, 2014). If the owners
in a specific condo want term limits, they can vote for them.
So why force it on them?
So who wants to play judge
here and tell me how the above questions should be answered
and/or how they should be fixed?