Page 5 - WFL Cooperator Winter Expo 2020

Nonowner Board Member Q On our board is one member who is not an owner of his unit; the deed is in his wife’s name as sole owner. Our declaration, Articles of Incorporation, and bylaws are very clear regarding directors: Th ey must be owner-members as they show on the deed. Th is situation is repeating year aft er year, and the explanation is that it is OK because they’re husband and wife. Is this correct? —Puzzled A According to Robert Rubin- stein, offi ce managing share- holder and board certifi ed specialist in condominium and planned de- velopment law at law fi rm Becker & Poliakoff in West Palm Beach, “Florida Statutes, Section 718.112(2)(d)(4)(a), states: ‘A unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before a scheduled election.’ So, the statute allows persons who are not own- ers to serve on the board, provided they are eligible to be candidates. However, this statute does not give spouses any right to serve on the board if the spouse is not an owner, and there is no other Florida statute or case giving spouses the right to serve on the board if the spouse is not an owner simply because the person is the spouse of an owner. Aside from certain statu- tory requirements like felony convictions or delinquencies, Chapter 718, Florida Statutes, does not set qualifi cations for persons who are eligible to serve on the board. “Th ere are qualifi cations for directors set forth in the not-for-profi t corporation statutes, but they are minimal. Florida Statutes, Section 617.0802(1), just requires a director to be 18 years of age or older. Subsection 2 of that stat- ute allows a grantor of a trust or a benefi ciary of a trust to serve on the board, if the trust owns the unit and if the benefi ciary occupies the unit. Virtually all condominium associations are not-for-profi t corporations and the provisions of Chapter 617, Florida Statutes, are made ap- plicable to condominium associations by virtue going to hold a garage sale and was simply giv- of Florida Statutes, Section 718.111(2), as long ing them the heads-up about it. Previously, no Rembaum, which has offi ces in Pompano as there is no confl ict with Chapter 718, Florida notice was given to the board to hold garage Beach and Palm Beach Gardens. “In general Statutes. In the off chance a condominium as- sociation was formed as a for-profi t corpora- tion under Chapter 607, Florida Statutes, it also applies when it does not confl ict with Chapter “request” and that my request to hold a garage ber will have a confl ict of interest that will typi- 718, Florida Statutes, by virtue of the same stat- ute with the same condition that it not confl ict with a prior garage sale (without providing issue. If, however, the benefi t to the individual with Chapter 718, Florida Statutes. Florida any details about those alleged problems) and director is not one which has a direct fi nancial Statutes, Section 607.0802(4), contains the pretended not to have even been aware that I benefi t, the individual can vote on the matter. identical language requiring directors to be 18 had previously held two garage sales—which, if An example of a situation that will benefi t the years of age or older and allowing grantors of a true, provides further evidence that the garage individual director is when that person has pre- trust and benefi ciaries of a trust to serve on the sales I previously held inconvenienced no one sented a contract to the association to provide board when a trust owns the unit. “As you can see, nothing gives a non-own- er spouse the right to serve on the board, but all the statutes allow anyone 18 years of age or older to serve on the board. Th erefore, it is up to the association’s governing documents to determine whether any person who is not an owner, whom the condominium statute says Richard D. DeBoest II, Esq., a partner service providers to the association while serv- defi nes as ‘other eligible person,’ can serve on and shareholder at the Fort Myers law fi rm ing on the board. the board. In your case, you stated your as- sociation’s Articles of Incorporation and by- laws expressly require directors to be owners. purpose intended. Th erefore, in my opinion, to one which provides a greater number likely Th at means a non-owner spouse—meaning a while you have been holding garage sales in the falls into the situation which would not pre- spouse whose name is not on the deed to the parking space over the years, the board would clude the director from voting. Th e policy will unit—cannot serve on the board of directors. have the authority to no longer allow this type apply to all owners in the same fashion and will Accordingly, your association’s practice of hav- ing a non-owner spouse serve on the board violates the governing documents and cannot be allowed.” Parking Lot Garage Sale Denied Q I live in a fi ve-story condominium the board member is an investor with more to adopt a budget with a lower monthly assess- with 24 units, 24 designated park- ing spots, and 6 undesignated spots. for tenants; therefore he/she moves to vote to from this change, but not in a manner that is ‘Designated’ means that only the 24 people change the rule allowing more spaces and plac- with parking tags can park in any one of the 24 ing him/her in an advantageous position to members receive the same benefi t.” designated spots (but the spots are not individ- ually assigned). Anyone can park in the undes- ignated spots. I have lived at this condo for 20 years. Twice before, I have held a garage sale in one of the designated spots, during which time I have parked my car in an undesignated spot. Recently, I informed the board that I was vidual to abstain from voting on the issue,” says sales—I was just being courteous, and was not terms, when an association is considering an expecting any reply. But I did get a reply, stating that they got my a member of the board, that individual mem- sale was denied. Th e board cited “problems” cally preclude him or her from voting on the to the extent that the board didn’t even notice certain goods or services to the association for that they happened. Can I still hold my sale? —Am I Right or Wrong? A “Th e parking spaces are com- mon elements intended for fl icts and legislation adopted in 2017 prohibits the parking of motor vehicles,” board members in condominiums from being Goede, Adamczyk, DeBoest & Cross, PLLC. “Th e common elements are to be used for the policy that limits the number of parking spaces of use.” Changing the Rules to Your Advantage Q Can a board member vote on a sions that are made will benefi t the individual change in rules that will directly directors, while not being an impermissible benefi t him or her? For example, confl ict. For example, if the board is deciding than ten units and needs more parking spaces ment charge, each of the directors will benefi t other residents. —Is Th is Allowed? A “Not all issues that benefi t an individual director fall into the category that requires the indi- attorney Robert Kaye of the fi rm Kaye Bender issue that will have a direct fi nancial benefi t to pay. In this instance, the individual is required to make a full disclosure of the confl ict and abstain from voting. Florida law has a specifi c procedure in handling certain director con- “In the example provided, the change in not, in and of itself, provide the director with a direct fi nancial benefi t. In situations when board members are owners, many of the deci- a prohibited confl ict of interest, as all other n Disclaimer: Th e answers provided in this Q&A column are of a general nature and cannot substitute for professional advice regarding your specifi c circumstances. Always seek the advice of competent legal counsel or other qualifi ed professionals with any questions you may have regarding technical or legal issues. FLCOOPERATOR.COM THE WESTERN FLORIDA COOPERATOR —EXPO 2019 5 TAMPA CONVENTION CENTER THURSDAY, DECEMBER 5, 10AM-3:30PM FREE REGISTRATION: TAMPA-EXPO.COM THE BEST TIME TO FIND AN EXPERT IS BEFORE YOU NEED ONE. 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