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 oftentimes 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?