Can Co-owners Serve Together On Condo Board?

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

Published July 9, 2007

 

Many of you may have read the article "Judge rules co-owners can serve together on Coral Springs condo board" and/or the judge's ruling in the case LAKEWOOD VILLAGE CONDOMINIUM ASSOCIATION, INC. vs. LAUREN ROSEN BERACHA -- and you may have wondered what this is really all about?

Actually, the judge's ruling is absolutely correct. But the case never should have ended up in court -- no good association dues should have been wasted on a case like this. It was quite obvious that the board can't make up rules -- in the middle of a pending election process to disqualify a candidate. The association attorney never should have filed a lawsuit considering these facts. But since it's all about money -- and not about right or wrong - we see lawsuits like this squandering owners' money all the time! 

There is only one disqualifying factor in the statutes. The Florida Condo Act Section 718.112(d)3 is absolutely clear on this issue: Only a convicted felon, whose right to vote has not been restored, is not eligible for board membership. PERIOD!

So, definitely nothing wrong with the judge's ruling -- he surely did his homework and quoted important case law to bolster his opinion. I wish he would have as well opined on the fact that the rule to disqualify a co-owner from serving on the same board was invalid from starters. Even if Florida 's Condo Act gives boards more or less dictatorial powers -- very often to the detriment of the owners -- a board just can't make up rules that violate vested rights of owners.

This is an issue that has been long discussed. Various proposed condo bills -- like HB 1227 in 2006 -- 

tried to make the necessary changes, but failed to pass the legislature due to the heavy resistance of the specialized attorneys, who would rather see lawsuits -- like the one discussed here -- create some more income. Common sense would dictate to see this kind of language included in the Condo Act: "Co-owners of a unit may not serve as members of the board of administration during the same fiscal year." This one sentence would have stopped the waste of association dues -- not only in this case!

Most of the governing documents of Florida 's condo associations contain language similar to this example: "Members shall be entitled to one (1) vote for each unit."   Meaning co-owners have only one (1) vote at a membership meeting. But the ability to serve together on the board of directors allows them to cast two (2) votes at a board meeting. Considering the immense power of board decisions these votes are definitely much more valuable than a vote at a membership meeting. Allowing co-owners of a unit to serve on the same board surely contradicts the intent of the governing documents of the association.

And let's just consider the practical side of this issue: It's absolutely ridiculous! Especially if there is, like in this case, only a three-member board. Don't forget:  "A meeting of the board of administration means any gathering of the members of the board of directors, at which a quorum of the members is present."

Let's face it, if husband and wife are two of the three board members every time they see each other -- be it in their home, their dinner table or in the bedroom -- and talk about anything relating to the condo association, they are officially holding a board meeting, thereby violating Florida statutes if the other association members are not officially invited.  Hmmm, that could make for delicate board meetings, couldn't it?

Now the opposition will say that the definition says that it's only a board meeting if they "meet for the purpose of conducting association business." But if nobody else is present -- who knows what they are talking about?

Gee, and then the TEMPTATION. For argument's sake, let's just say it's a law-abiding couple, having only the best for the association in mind. But, for some reason, family finances suffer losses and the couple is falling on hard times. Now what? Don't forget, with a super majority on the board they can decide on a major repair job (big kickbacks) and an even bigger line of credit (even more kickbacks) and there is nothing any of the other members can do. The couples finances are rescued, but the neighbors will have to pay for the next twenty years -- and there is no safeguard! Even if the neighbors revolt, and recall the board -- it's too late -- the damage is done!

Maybe that's why it would be a good idea to add this little sentence to the Florida statutes. It would avoid ridiculous but costly lawsuits and put up another safeguard against financial mischief. 

Temptation is what creates the financial problems in our associations -- be it by co-owners serving on the same board or by the lack of term limits for board members!

I hope we all know the words: "Lead Us Not Into Temptation!"

Adding safeguards to the statutes surely would help to cut down on TEMPTATION!

The next time Florida 's legislature meets, our elected official should strongly consider adding the necessary safeguards to our statutes in order to protect owners and board members against TEMPTATION!

JUST ADD THESE FEW WORDS TO FS 718.112(d)1.

A unit owner may not serve on the board as a director for more than two terms or longer than 4 years. A member may not serve as an officer of the corporation for more that one term. Co-owners of a unit may not serve as members of the board of administration during the same fiscal year.

IT REMOVES A LOT OF TEMPTATION

AND ADDS BIG SAFEGUARDS!


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