Tuesday, September 8, 2009

Are any of your board members currently ineligible to serve?

Changes to the Condominium Act two years ago addressed the issue of delinquent board members, a problem that has sadly become even more frequent since that time.

Section 718.112(2)(d) and (2) (n) provide that board members who are more than 90 days delinquent in the payment of regular assessments are deemed to have abandoned the office, thereby creating a vacancy that the rest of the board must fill. The board need not vote to remove the delinquent board member; the board need only vote to fill the automatic vacancy.

A bill last legislative session would have extended ineligibility to serve on the board to those delinquent in the payment of special assessments as well; however, that bill failed.

Currently, the Division takes the position that delinquent owners are eligible to run for the board but must become current at the time of election. If they remain more than 90 days delinquent at the time they are elected to the board, they are deemed to have automatically abandoned the office. Currently, a board member can be more than 90 days delinquent in the payment of a special assessment and still serve. The current law only addresses the issue of delinquency with regard to regular assessments. In addition, there is nothing that would prevent the board from reappointing the same director to the board once he or she becomes current in the payment of assessments.

The issue of multiple unit ownership in this regard is not addressed specifically in the statute but a literal reading of the current provisions would seem to dictate that if an individual owns several units and is current on all except one, that individual would still be ineligible to serve if he or she is more than 90 days delinquent in the payment of regular assessments for that one unit.

Presumably, the legislative intent behind the changes to Chapter 718 was to (a) prevent directors with "unclean hands" from voting to pursue collection efforts against other owners and (b) use board membership as a "carrot" to entice payment of an outstanding debt owed to the association.

It is important to remember that these eligibility requirements do NOT apply to homeowners' association boards. No similar language is found in Chapter 720. Currently, HOA board members could be or become delinquent and still continue to serve unless their community's particular governing documents prohibit them from doing so.

How many of you have delinquent owners serving on your boards? How many of you had delinquent owners running for the board who settled their accounts before election night?

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