Confusion Still Reigns Regarding Condominium Directors’ Term Limits

By Keith F. Backer Esq. / Published February 2020

Q

uestion:

Can you please tell me the current status of the Condominium Act provision that limits director terms to eight consecutive years? Originally I heard that it did not apply to prior board service, and then I heard it would apply, and now I hear that not only does it not apply to prior board service, but that in some condominiums it may not apply at all. I’m confused.

Answer:

     Effective July 1, 2018, Section 718.112(2)(d)2, Fla. Stat., was amended to read as follows:

     “Board members may serve terms longer than 1 year if permitted by the bylaws or articles of incorporation. 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.”

     The Department of Business and Professional Regulation’s (DBPR) Division of Florida Condominiums is the Florida agency that writes administrative rules to implement the Condominium Act and administers the mandatory arbitration program that considers condominium disputes and condominium/HOA election disputes. The Division issues what are known as Declaratory Statements when requested by parties who are unclear about the applicability of portions of the Condominium Act.

     Some readers may recall that on September 14, 2018, the Division issued a Declaratory Statement involving The Apollo Condominium Association Inc., concerning whether a director’s eight years of pre-July 1, 2018, service on his condominium’s board of directors would disqualify him from serving another term if elected. The Division stated that the director’s eight consecutive years of pre-July 1, 2018, service on his board would, in fact, disqualify him from serving another term unless he received two thirds of the votes cast at the next election. The Division’s Declaratory Statement offered no legal analysis to support its conclusion, and there was no discussion about the arguments which the Apollo attorney may have made in support of his client’s position; there is nothing to suggest that anything other than language of the statute was considered by the Division in reaching its conclusion.

     On November 6, 2019, the DBPR rendered a decision in an arbitration case styled Glanz v. Hidden Lake of Manatee Owners Association, Inc. which involved the issue of whether a director who had already served in excess of eight consecutive years was able to serve after he was elected again but without receiving two thirds of the votes cast. The Glanz case did not directly challenge the Division’s conclusions in the Apollo Declaratory Statement about whether pre-July 1, 2018, time served counts toward the eight years, but instead concluded that the July 1, 2018, amendment did not apply to the Association at all simply because the Declaration of Condominium was recorded prior to the July 1, 2018, amendment to the statute and because the Hidden Lake Declaration did not include language which incorporated by reference future amendments to the Condominium Act into the Declaration (commonly referred to as “Kaufman Language”).

     If the Glanz decision is upheld (it may be subject to a motion for rehearing or may be subjected to a challenge in court) and is followed by other arbitrators at the DBPR, those condominiums whose declarations were recorded prior to July 1, 2018, and which did not include language expressly incorporating future amendments to the Condominium Act will not be bound by the term limits language in the Act. For those condominiums whose declarations do adopt future amendments, the issue of whether pre-July 1, 2018, years of service will preclude additional years of service remains an open question.

     Stay tuned as the law continues to develop on this contentious and confusing issue. In the meantime, if your condominium has directors who may be affected by the term limit language of the Condominium Act, it is important that the issue be discussed with your association’s attorney well in advance of the election to strategize about possible solutions and to discuss how the statute may affect the outcome of the election.

Keith F. Backer, Esq.

Managing Partner of Backer Aboud Poliakoff & Foelster LLP

     Keith F. Backer, Esq., is the managing partner of Backer Aboud Poliakoff & Foelster LLP. Mr. Backer is among the few Florida attorneys Board Certified as a specialist in condominium and planned development law by The Florida Bar. He has provided legal services to hundreds of community association clients in Palm Beach, Broward, Miami-Dade, and St. Lucie Counties over the last three decades. For more information, visit www.bapflaw.com.