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:
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.