Does A Condo Board Member Have To Be

A Deeded Owner?

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

Published May 29, 2008


We have seen many heated discussions arguing the often asked question:

Can a non-member (not deeded owner) of an association be elected to serve on the association’s board of directors?


Well, there is sure no obvious answer to this question in FS 718 – no sentence like:

Only deeded owners are eligible for board membership!


The Division has over the last few years ruled (See: BYLAWS? NO HURDLE FOR THE DIVISION!) that provisions in the association’s bylaws restricting eligibility to serve on the board are not valid. The Division states that if the by-laws permit non-owners may be board members. However, FS 718.112(2)(d)1 requires that only "unit owners" may be candidates  for board membership and they must comply with the election provisions of the Florida Statutes.


Only Unit Owners may be elected to the board. Non-unit Owners could possibly be appointed to the board if the By-Laws permit, however, they may not be candidates and therefore may not be elected.

Actually the only real reference in the Florida Condo Act can be found in FS 718.112(2)(d)1:  Any unit owner desiring to be a candidate for board membership shall comply with subparagraph 3.

718.112(2)(d)1.  There shall be an annual meeting of the unit owners. Unless the bylaws provide otherwise, a vacancy on the board caused by the expiration of a director's term shall be filled by electing a new board member, and the election shall be by secret ballot; however, if the number of vacancies equals or exceeds the number of candidates, no election is required. If there is no provision in the bylaws for terms of the members of the board, the terms of all members of the board shall expire upon the election of their successors at the annual meeting. Any unit owner desiring to be a candidate for board membership shall comply with subparagraph 3. A person who has been convicted of any felony by any court of record in the United States and who has not had his or her right to vote restored pursuant to law in the jurisdiction of his or her residence is not eligible for board membership. The validity of an action by the board is not affected if it is later determined that a member of the board is ineligible for board membership due to having been convicted of a felony.

The only reasonable interpretation of this sentence: Only a unit owner can be a candidate for the board of directors

If interpreted otherwise, it would mean that candidates who are not unit owners don't have to follow the rules! That would be a little far-fetched – even considering the often vague language of the Condo Act.     

That leaves only one reasonable explanation: With the wording in FS 718.112(2)(d)1 legislators clearly wanted to make sure that only unit owners could be eligible candidates for the election of condo association board members.

Let's face it: Common sense alone dictates that only deeded owners can serve on the association board -- after developer turn-over. How can somebody serve on the board who can't even participate in a membership meeting? Don't forget, we have seen many examples where boards removed non-deeded owners -- often spouses of owners -- from membership meetings. That clearly indicates that a board member would have to be a deeded owner, or he/she would have to be removed as well?

If Florida Statutes don't prohibit non-members from serving on the board, you would have the admittedly weird situation that a person can vote at a board meeting, but can't vote at a membership meeting -- or even participate in a membership meeting!

This wording would as well require the Division to take action, if complaints are filed about non-members serving on the board. This is clearly not an issue of interpreting or enforcing condominium documents – it’s a violation of Florida Statutes!

This link takes you to one of the typical "we don't want to get involved" letters of the Division. 

Claiming to have no jurisdiction over bylaws issues, the Division tells condo owners to send a written inquiry to the board. The board will respond with another "GET LOST" letter and the next thing is litigation. 

The members of a condo association in Jacksonville are recalling the president of the board after finding out that he is not an owner. But, after the recall petitions were served, he refused to certify the recall and is using association money to pay the law firm of Clayton & McCulloh to fight the recall -- at the expense of the unit owners. 

That's what happens when the Division refuses to do its job. But in a recent disputed recall in the PLAYA DEL MAR condominium in Fort Lauderdale, board attorney Randall Roger used the "legal standing" approach, claiming that recalled board member Mark Stern should not have been a member of the board in the first place since he is not a deeded owner.  Stern is the trustee of the unit and there was never any doubt about his right to vote or sit on the association board! This was obviously just another attempt to postpone the ruling of arbitrator James Earl to hand over certain documents to the recall petitioner. And Roger surely achieved his goal stalling the progress of the arbitration procedure.

It took arbitrator James Earl about three months to come up with the decision that Mark Stern could serve on the board of directors of the Playa del Mar. 




As long as condo owners are not being protected by the regulatory agency that fails to do what it is supposed to do and comes up with self-serving rulings that don't protect the rights of Florida's condo owners as intended, the best bills -- like Rep. Julio Robaina's H 995 -- will not help to solve the many problems we see on a daily basis in our condo associations. 

Even the best law is useless without enforcement!


718.112(2)(d)3.  3.  The members of the board shall be elected by written ballot or voting machine. Proxies shall in no event be used in electing the board, either in general elections or elections to fill vacancies caused by recall, resignation, or otherwise, unless otherwise provided in this chapter. Not less than 60 days before a scheduled election, the association shall mail, deliver, or electronically transmit, whether by separate association mailing or included in another association mailing, delivery, or transmission, including regularly published newsletters, to each unit owner entitled to a vote, a first notice of the date of the election. Any unit owner or other eligible person [1] desiring to be a candidate for the board must give written notice to the association not less than 40 days before a scheduled election. Together with the written notice and agenda as set forth in subparagraph 2., the association shall mail, deliver, or electronically transmit a second notice of the election to all unit owners entitled to vote therein, together with a ballot which shall list all candidates. Upon request of a candidate, the association shall include an information sheet, no larger than 81/2 inches by 11 inches, which must be furnished by the candidate not less than 35 days before the election, to be included with the mailing, delivery, or transmission of the ballot, with the costs of mailing, delivery, or electronic transmission and copying to be borne by the association. The association is not liable for the contents of the information sheets prepared by the candidates. In order to reduce costs, the association may print or duplicate the information sheets on both sides of the paper. The division shall by rule establish voting procedures consistent with the provisions contained herein, including rules establishing procedures for giving notice by electronic transmission and rules providing for the secrecy of ballots. Elections shall be decided by a plurality of those ballots cast. There shall be no quorum requirement; however, at least 20 percent of the eligible voters must cast a ballot in order to have a valid election of members of the board. No unit owner shall permit any other person to vote his or her ballot, and any such ballots improperly cast shall be deemed invalid, provided any unit owner who violates this provision may be fined by the association in accordance with s. 718.303. A unit owner who needs assistance in casting the ballot for the reasons stated in s. 101.051 may obtain assistance in casting the ballot. The regular election shall occur on the date of the annual meeting. The provisions of this subparagraph shall not apply to timeshare condominium associations. Notwithstanding the provisions of this subparagraph, an election is not required unless more candidates file notices of intent to run or are nominated than board vacancies exist.


[1] eligible person other than unit owners, would be anyone expressly permitted by the bylaws or other governing documents, e. g. corporate officers, in the case of a unit owned by a corporation, may serve if expressly permitted by the governing documents. Non-owning spouses of unit owners may serve, if the governing documents expressly permit it.