CONFUSION REIGNS IN CONDOMINIUM ELECTIONS

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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