Board Member Certification—Should It Be Just the Beginning?
By Jeffrey A. Rembaum, Esq. / Published October 2023
The Florida legislature requires board members to be “certified” in order to be properly qualified to serve on the board of a residential community association. By now you might think that the requirements are exactly the same for condominium boards as compared against homeowner associations’ boards, but they differ with regard to how long the association is obligated to keep the proof of director certification.
The Florida Condominium Act, more specifically §718.112(2)(d)4.b., Florida Statutes, and the Florida Homeowners’ Association Act, more specifically §720.3033(1)(a), Florida Statutes, require the following:
Within 90 days after being elected or appointed to the board of an association of a residential condominium, each newly elected or appointed director shall certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.
In lieu of this written certification, within 90 days after being elected or appointed to the board, the newly elected or appointed director may submit a certificate of having satisfactorily completed the educational curriculum administered by a division-approved condominium education provider within one year before, or 90 days after the date of election or appointment.
The written certification or educational certificate is valid and does not have to be resubmitted as long as the director serves on the board without interruption.
A director of an association who fails to timely file the written certification or educational certificate is suspended from service on the board until he or she complies with this sub-subparagraph. The board may temporarily fill the vacancy during the period of suspension.
Failure to have such written certification or educational certificate on file does not affect the validity of any board action.
The Condominium Act requires that the secretary shall cause the association to retain a director’s written certification or educational certificate for inspection by the members for five years after a director’s election or the duration of the director’s uninterrupted tenure, whichever is longer, while the Homeowners’ Association Act requires that the association retain each director’s written certification or educational certificate for inspection by the members for five years after the director’s election.
While requiring certification is a good start in regard to providing board members the necessary tools to do their job, there are issues which need to be addressed, such as the following:
The ability of a board member to be certified simply by signing an 8 ½ x 11 piece of paper that they read the governing documents, will uphold the governing documents, and will faithfully discharge their duty should be eliminated. How many board members actually read their respective governing documents; and even if they do, what did they learn about corporate governance and the ever-growing body of statutory law, judicial decisions, and intricacies of ensuring that their fiduciary responsibility is being met?
The ability to be certified simply by watching a pre-recorded webinar should also be modified or, better still, fully eliminated. Not only do attendees benefit from the one-on-one instruction in a live classroom or webinar setting, but when viewers have the ability to watch from home, well, did they really do so? At present the Department of Business and Professional Regulation (DBPR) does not regulate or police the pre-recorded board certification webinar. These pre-recorded certification courses allow the viewer to cheat the system by simply fast forwarding to the end to make it appear as though the viewer watched the entire presentation, but in reality, they did not! Most importantly, the laws governing community associations are in a constant state of flux. The legislature is continually revising and adding new laws, and appellate courts continually author new opinions affecting community associations. Only by attending a live class, be it in person or by webinar, will a board member have the best opportunity to be fully updated.
The information covered in the certification class is primarily of a legal nature emanating from the Florida Statutes and relevant case law. Therefore, only lawyers who are board-certified specialists in this body of law and other lawyers with a sufficient number of years of daily experience in community association law matters should be permitted to teach the initial board certification classes.
Continuing education for those board members serving multiple years should be strongly considered, even if it is only one or two hours per year. The continuing education component courses could be led by board-certified specialists in this body of law, or by other lawyers with a sufficient number of years of daily experience in community association law matters, or perhaps even experienced, licensed managers demonstrating sufficient knowledge in the field, regarding a variety of subjects. Also, during the typical initial board member certification course, the variety of subjects needing discussion can only be summarized. Therefore, in-depth analysis of the myriad of issues and subjects discussed is practically impossible given the time constraints, which could be addressed by requiring continuing education. Potential subjects include the following:
Budgets and reserves
Conflicts of interest
Approval and screening requirements
Fair housing laws
How to run a board meeting
Conflict resolution and de-escalation techniques for angry homeowners
Requiring an initial board certification was a really good start. However, the process of education must continue. In our opinion, a one-time board certification course is simply not sufficient! Since the law already contemplates that board members will serve multiple years, the law should also contemplate continuing education requirements.
Partner, Kaye Bender Rembaum
Attorney Jeffrey Rembaum has considerable experience representing countless community associations that include condominium, homeowner, commercial, and cooperative associations throughout Florida. He is a board-certified specialist in condominium and planned development law and is a Florida Supreme Court circuit civil mediator. Every year since 2012 Mr. Rembaum has been inducted into the Florida Super Lawyers. He was twice awarded as a member of Florida Trend’s Legal Elite. Kaye Bender Rembaum P.L. is devoted to the representation of community and commercial associations throughout Florida with offices in Palm Beach, Broward, Hillsborough, and Orange Counties (and Miami-Dade by appointment). For more information, visit kbrlegal.com.
Professional Growth Through Learning
FCAP (Florida Community Association Professionals) is a member-based professional organization dedicated to training, equipping and advocating for Florida community association professionals including managers, service providers and community volunteer leaders.