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CONFUSION REIGNS IN CONDOMINIUM ELECTIONS
By
Eric Glazer, Esq.
Published October 22, 2018
Remember the TV show Eight Is Enough? Apparently, that’s how
The Florida Legislature feels about your right to serve on a
condominium board of directors. Eight years in a row is
enough. This does not mean however that if you already served
eight years in a row on a condo board that you are precluded
from running or even serving. The statute states: 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. So, clearly, even if you would now be
entering your 9th consecutive year or longer, you can
still serve on your Board of Directors if two-thirds of the
voters vote for you or if there simply isn’t enough interest by
others.
I have been asked a thousand times now whether or not this
statute applies immediately, meaning does it apply to persons
who already served eight years. Everyone asks me if the statute
is “retroactive.” It is my position, and now the official
position of the Division of Condominiums, as a result of a new
Declaratory Statement, that the statute applies immediately to
anyone who is seeking to run in their ninth consecutive year or
longer and that applying the statute in this fashion would not
be an illegal retroactive application of the statute. This
statute does not automatically remove someone in the middle of
their 9th consecutive year. That would be considered
an illegal retroactive application. On the contrary, this
statute regulates the future conduct of elections.
If you’re not confused yet, just wait. You may
recall that I argued a case before The Florida Supreme Court in
2011 called Cohn v. The Grand Condominium. In that case, a
Florida Statute was struck down as unconstitutional because it
in effect changed the bylaws in some mixed-use condominiums by
creating a right of the residential unit owners to elect a
majority of the board, even though the bylaws (contract) gave
the right to elect a majority of the board to the commercial
unit owners.
The Florida Supreme Court said that vested voting
rights cannot be changed by statute unless there is “Kaufman”
language or “as amended from time to time” language in the
documents that automatically incorporates future statutory
amendments. So, let’s say your declaration or bylaws do not
contain any term limits and you are allowed to run every year.
Unless your governing documents contain Kaufman language and
adopts this new statutory 8 year maximum amendment, in my humble
opinion this new law does not apply in your condominium because
it would be unconstitutional, as it would abridge or change your
vested right to serve on your board every year. The bottom line
is……if you’re unsure as to how to apply this new law in your
condo – ask a lawyer.
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Associates, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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