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Reporting an ineligible Board Member, Florida HOA

Started by KweliN • 47 replies • 3734 views

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KweliN (Florida)
Posts: 19
Posted:
I recently moved into a community in Homestead, FL and wanted to obtain some information on the members of the Board of Directors. By mere coincidence, I found that the President of the Board is no longer an owner of the unit he currently occupies. According to the Miami-Dade property search, the property address that the President is occupying indicates a bank as the owner. Does he qualify to be President of a Condominium Association? If not, what should be done and where should one report this irregularity and possibly disqualify him from continuing as President? Said President apparently has held office for close to a year and elections of Board Members are due in August or September 2014. As yet, there is no indication he will not stand for election for another term. Thanks in advance for your help!
LarryB13 (Arizona)
Posts: 4,099
Posted:
Many bylaws fail to address the issue of what happens when a board member becomes ineligible to be elected. Therefore, a person who was eligible to serve when he was elected might not be required to resign if he is not eligible to run in the next election.

Since the election is almost here and he does not appear to be running for another term on the board, your simplest action is to do nothing. Anything else will take time and may cost you money.

It would be a good idea to confirm that the president will not run for another term. If he indicates that he will or he might run, then you should confirm ownership of his unit. If you feel that the president intends to run again and is not eligible to do so then you should make that known to as many other members as you can reach.

KerryL1 (California)
Posts: 14,550
Posted:
It's also possible that your bylaws, KweliN, permit non-owners to be on the board. So check them.

With Larry, I'd do nothing now since the election is so close.
If directors must be owners, and you learn that he's going to run again, contact the other members of the board by registered letter, reply requested, asking them to disallow his candidacy. If you have a property mgr., send your request to her/him and copy the Board.
KweliN (Florida)
Posts: 19
Posted:
Thanks to both of you for your responses. A cursory review of the Association's bylaws provides no specific definition of members, directors and the like. Whether that by default implies that anyone (a non-owner and thus not paying HOA dues or property taxes) can jump on board and become Board Member is open to interpretation. Assuming that FL State laws take precedence over Association bylaws, the FL statues do define "members", "voting members" as parcel owners or their reps. Additionally "Officers" and "Directors" as individuals that are ELECTED to these positions, again, implying that they must be homeowners. However there is no mention of the mechanisms of challenging potential membership irregularities and which is the governing authority on such matters. This could lead to lengthy legal wrangles. Legal ambiguities may open HOA to unbridled abuse by Directors (not uncommon here).
KerryL1 (California)
Posts: 14,550
Posted:
Good that you're looking into this. Your wrote: "'Officers' and 'Directors' as individuals that are ELECTED to these positions, again, implying that they must be homeowners."

The voters must be homeowners (members), but this doesn't say that officers or directors must be homeowners (members). By the way, usually once the directors are elected and there is a new board, theta board elects the officers usually form among the directors.

When HOAs are still under the control of the declarant (developer), the bylaws usually do not state that directors must be homeowners. The initial directors often are not owners, but employees of the developer's firm. When the HOA transitions to the homeowners, too often the new board does not amend the bylaws to state that directors and officers must be members. So that qualification doesn't exist.

IMO, you don't need to think about any recourse or legal action now because there may be nothing illegal going on. If he does seek et-election, whether or not he's permitted to, his opponent certainly can mount a campaign against him as a non-owner.
KweliN (Florida)
Posts: 19
Posted:
KerryL1: Good point on the developer question. The HOA rules and regulations in my possession make frequent mention of developers, although the vast majority of the units in the complex are now owner-owned and/or -occupied. The document as you rightly pointed out remains largely unchanged from the original version. Even the listed directors are no longer here and I have no idea when the document was prepared. For instance, in one of the clauses addressing the issue of notifying members of meetings, one method cited for distributing notices is the telegraph (no mention of e-mails, or other forms of electronic communication). As we all know, the telegraph has long been obsolete and no longer used for who knows how long. For all I care, the document may have been a copy and paste version of some ancient one. I was only given a paper version with no access to an electronic one, for a fee.

You are also right about the director question about not being validated simply by the voting members being parcel owners. There have been reports of widespread abuses and embezzlement here in FL and the laws are pretty outdated, leaving an open ended system with virtually no accountability and one that invites abuses. So our state legislators seem to have other priorities on their minds leaving us pretty much to the whims of (at times) unscrupulous and inept directors.
KerryL1 (California)
Posts: 14,550
Posted:
I hope you'll get replies from some of the Floridians who post here--there are several and some know your state's statutes really well. There probably are many state laws that trump your old bylaws and even CC&Rs. I'm sure I've seen that one area is what HOA materials you can inspect, and also things like notices.
KweliN (Florida)
Posts: 19
Posted:
It would really help to have some Floridians weigh in on this. By the way, what are CC&Rs?
AnnH5 (Florida)
Posts: 304
Posted:
Per Florida statute: Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. All members of the association are eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held; provided, however, that if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting.

“Member” means a member of an association, and may include, but is not limited to, a parcel owner or an association representing parcel owners or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee.

Therefore, if the Board President does not meet the definition of "member" as defined by our statutes, he or she is ineligible to sit on the Board.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Kwe

Some tough love here:

You say you just moved in. Are you an owner or a renter?

You are already insinuating/accusing that there might problems and you do not know what CC&R's are. CC&R's are Covenants, Controls & Restriction. Often called Covenants. Also called Deed Restrictions in some states.

Yes we all had to learn (many of us on here) but the differences are did one come out here asking how to learn or did one come out here making accusations? You came out here appearing to not knowing much but accusing from the get go.

Like asking the question of do you still beat your wife?

I think Little Cricket has a lot to learn before making accusations.

KweliN (Florida)
Posts: 19
Posted:
Thank you kindly AnnH5. Your interpretation differs slightly to that of KerryL1 above as you might have gathered. He did indicate that a more knowledgeable FL resident would be in a better position to shed light on the matter; your interpretation is closer to my own hunch. Section 720.301, subsection 10 "Definitions" does indeed state who a member is. But I saw no clause stating that members of the Board of Directors need to fulfill these requirements. The only reference to the BOD's is that they shall be elected by the members. On candidate nominations, our HOA bylaws state that the HOA or Management Company distribute candidate resumes to all members at least 10 days prior to the elections. After reviewing the relevant sections of our HOA bylaws several times, I found no specific mention of the requirement that a Director should also be a parcel owner, save for the fact they should be elected to office. The BOD can solicit volunteers to fill vacancies in the event a member vacates the post or sells his/her unit. As I observed, the bylaws appear rather old. They make numerous references to developers long after the majority of the units have been in the hands of buyers. Apparently amending the bylaws is a costly undertaking and may explain why some of the clauses such as the use of telegraphs for communicating HOA notices of meetings still remain. Again, thank you for sharing your thoughts.
KweliN (Florida)
Posts: 19
Posted:
Thank you for your enlightening remarks. In answer to your question, I am an owner and moved in 3 months ago.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By KweliN on 07/23/2014 9:23 AM

Does he qualify to be President of a Condominium Association?

Depends on if there are any qualifiers within your governing documents to prohibit him from serving.
Since you said that there are no qualification requirements within your governing documents, it appears to be allowed.

My own Association also doesn't have any requirements, which means that you could serve as an Officer of my Association.

On a side note: Please be aware that Directors and Officers are two different positions. It is normal for the same individual to hold both a Director position and an Officer position. When this happens, it's like having two jobs. Each job has it's own requirements, responsibilities and limitation on level of authority. Typically Directors are elected by the membership and Officers are appointed by the Board.

Quote:
Posted By KweliN on 07/23/2014 9:23 AM

If not, what should be done and where should one report this irregularity and possibly disqualify him from continuing as President?

Again since you indicated that there are no qualifiers within your governing documents, this is mute.

However, if there were qualifiers, you would report the issue to your Board. Violation of governing documents are typically seen as a civil matter. Civil matters are to be resolved between the parties involved.

Quote:
Posted By KweliN on 07/23/2014 9:23 AM

Said President apparently has held office for close to a year and elections of Board Members are due in August or September 2014.

I expect that the individual was elected to a two or three year term.

Quote:
Posted By KweliN on 07/23/2014 9:23 AM

As yet, there is no indication he will not stand for election for another term. Thanks in advance for your help!

Then one really has to ask if this is an issue. Why not wait to see if the individual is going to run again. If they are, then bring the issue up to the election committee or simply ask them at the meeting.

Quote:
Posted By KweliN on 07/23/2014 12:57:47 PM

Assuming that FL State laws take precedence over Association bylaws

Although it is typical that FL laws take precedence, that is not always the case and therefore you should refrain from assuming as such. It will depend on the language in the law. Some laws, even though they have precedence, will defer authority (control) to the lower precedent document.

Examples of this are: "unless the [document] states otherwise", "If the [document] is silent", etc.

Here is a link to a thread on this forum on how to better understand statutes:

http://www.hoatalk.com/Forum/tabid/55/view/topic/postid/103015/Default.aspx Subject: How to read a statute (law)

Quote:
Posted By KweliN on 07/23/2014 3:53:01 PM

There have been reports of widespread abuses and embezzlement here in FL and the laws are pretty outdated, leaving an open ended system with virtually no accountability and one that invites abuses.

Actually, FL laws seem to be very complete. I would rate them on par with CA laws for being very involved in Association processes.

One thing to remember is, as I pointed out earlier, Association issues are typically civil issues and are to be resolved between that parties involved. If a third party is needed to resolve the issue, it's typically the courts and the courts become involved by legal action of one of the involved parties.

The members of an Association are the checks and balances to keep abuse and embezzlement issues to a minimum. This is done by being involved in the process. Proposing procedures to be followed and checking that they have been. This is done by attending meetings (not just the annual meeting but the Board meetings as well). If you can't attend a meeting members should be reviewing the minutes of the meetings.

Additionally, since you live in a Florida condominium, members may turn to FL Office of the Condominium Ombudsman for additional assistance.

Quote:
Posted By AnnH5 on 07/23/2014 6:29 PM
Per Florida statute: Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. All members of the association are eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held;

Therefore, if the Board President does not meet the definition of "member" as defined by our statutes, he or she is ineligible to sit on the Board.

Ann,

I disagree with that interpretation. The only thing that that statue is saying is that "all members are eligible to serve." This simply means that the Association may not prevent a member from being nominated due to be delinquent in their assessments or in violation of the covenants/rules. That section of the statute would not prevent non-member from serving. To prevent non-members from serving, there would need to be qualifier language in the governing documents (typically the Bylaws).

Tim
KevinK7 (Florida)
Posts: 1,343
Posted:
While it may be ideal for the board member to be a homeowner it is not necesary for them to be a homeowner or even a member. Florida Statute 720 is for HOAs but that statute only goes into detail regarding some of the functions or processes specific to HOAs. It may reference the vague "governing documents." All else refers to s. 617, which if I am not mistaken will defer to things like the bylaws and articles of incorporation.

As an example, my HOA had a couple board members who did not own homes or live in the neighborhood. What they did was change the articles of incorporation an bylaws to permit two non-members to serve. I still scratched my head being that the two inelligible board members voted on these changes, but apart from that it is perfectly legal.

What I did was made this a big deal to the membership to try and win over homeowners to my side. And it worked. Homeowners were upset to find out that people who had the potential to levy special assessments were not subject themselves.
KerryL1 (California)
Posts: 14,550
Posted:
Ann's citation from the statute seems to say that directors must be owners (members) As you know, I wanted someone from FL to jump in. Can you please cite your source, Ann? I totally believe you, but Kweli may want to read more from that section.

It doesn't matter how old and odd your bylaws are. Unless they are superseded by state law, they rule.

I still say that with the election so soon, don't bother with the status of this director& prez unless he runs again. Even then, make sure he's not eligible.

KweliN (Florida)
Posts: 19
Posted:
TimB4, many thanks for a detailed and thoroughly reasoned response.

On the issue of eligibility, here in Miami about a year ago, a long time tenant nominated herself to become a Board member. After her application was declined by the Association, she took the matter to court but was ruled ineligible. Whether or not the Association bylaws in her case would have been violated, I am not sure.

Our bylaws clearly state that elections are to be held once a year, so the individual was elected for the current year.

Thanks for the link on how to read statutes. I will review it to see if the issue of precedence will become more clear. It does seem odd --- and please forgive my naivete on matters legal --- that non-members who do not pay amenity fees and property taxes should be involved in making decisions or even amend HOA bylaws affecting members who have a vested interested in their community. But then legal issues and ethical or moral ones may not always be in sync.

On the question of embezzlement, I should have specified Miami. About a year ago there was a Channel 7 investigative report that was pretty damning on what HOA Board members got away with. But the situation in Miami maybe different from other areas in FL. I can only guess that one of the problems is that substantial numbers of Hispanic members (depending on locations) have little working knowledge of English and may not have the language competence to read complicated HOA bylaws written in English to fully appreciate their rights and responsibilities.

Prior to moving to my current unit, I lived in a small condo community of 21 units. During my final year there, the HOA President hardly spoke or read English, despite the certification requirements on reading and understanding HOA bylaws in the FL statutes. In my current community, no such certification is stipulated in the bylaws.

I also appreciate the link on the FL HOA ombudsman. It could turn out to be a very useful resource in addressing some of the issues raised in my posts and those of others here.

KevinK7: thanks for your response. Your persistence paid off in amending the bylaws to better define as to who can become a Board member. Out of curiosity, how long did it take for the amendment to come into force? After talking to a former Board member in my HOA, she indicated that the process could be protracted and involve legal costs. In my HOA, an amendment to lift a ceiling on the percentage of units that could be rented took a year to become adopted.
KweliN (Florida)
Posts: 19
Posted:
KerryL1: Thanks. You are absolutely right, we are governed by existing HOA bylaws regardless of how old they are. To verify whether or not my HOA bylaws are in accord with FL statutes would require legal expertise well beyond my capacities. I have read the relevant sections of FL statutes related to these posts, but there is no clear statement or clause indicating that Directors must be elected from AMONG members of the HOA themselves (i.e. those paying amenity fees and property taxes), rather, they must be elected BY members. Hence my queries.
KerryL1 (California)
Posts: 14,550
Posted:
Your first quote, Kweli is: "Our bylaws clearly state that elections are to be held once a year, so the individual was elected for the current year. "

Do not assume that the non-woner director's term as director is up!! Ask someone knowledgeable! Elections of directors in most HOAs that I've heard of are held once a year. The directors generally are elected for two or three-year terms. Your bylaws will say how long a director's term is. if they do not and your HOA is a corporation (most are), turn to FL corporations codes, which might state how long terms are for corporate directors.

Except for one or two cases, all HOA directors that I've read about elect officers for one year. As I noted previously the officers usually are elected by the directors from among the directors following an election of directors.

As mentioned earlier, though I doubt it, there may be something in your CC&Rs (covenants; declaration, deed restrictions) that says some things about directors' qualifications. That doc may discuss the duties, obligations and limitations for directors. Do you have these covenants???

Another quote of yours, Kweli: "The BOD can solicit volunteers to fill vacancies in the event a member vacates the post or sells his/her unit." This passage strongly suggests that a director who sells his unit no longer qualifies to be a director!

I feel that you're missing some passages in your bylaws. Are you certain that all of the pages are there? Do the article numbers proceed in a logical sequence? Or are there gaps?
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By KerryL1 on 07/24/2014 7:53 AM

Ann's citation from the statute seems to say that directors must be owners (members)

Kerry,

Why do you think this?

As for the source, I believe Ann cited FL 720.306

However, since the OP is in a condominium, the applicable statute would be FL 718:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/0718ContentsIndex.html&StatuteYear=2013&Title=-%3E2013-%3EChapter%20718

With the specific section applicable to the discussion to be 718.112(2)d

TimB4 (Tennessee)
Posts: 21,059
Posted:
I may have been thinking about a different thread at the time I wrote my previous response.

I do not know if the OP lives in a condo or not.
KweliN (Florida)
Posts: 19
Posted:
KerryL1: On the question of the completeness of the bylaws docs, I will get back to you after verifying with a former Board Member later today or tomorrow. I was unable to reach her.

The article numbers do proceed in logical sequence. However the only part that has a table of contents is the first document, "Prospectus" and the pages in this document are in accord with the TOC. The other documents do not contain a TOC. They are Exhibit "4" (By-Laws of the association), Exhibit "4" Schedule "A" (Rules and regulations) and Exhibit "5" (Articles of Incorporation). Since I only have hard copies of said docs provided by the previous owner at closing, I can only verify the page issue after comparing notes with the former BOD member.

Here is a sample of relevant clauses. I include those that you raised questions on (elections, term) and those that pertain to eligibility to become a member of the Board of Directors:

A. Exhibit "4" By-Laws:
Section 3. Members

3.1 Annual Meeting: The annual members' meeting shall be held on the first Tuesday in February or on the date determined by the Board of Directors from time to time, at the place and at the time determined by the Board of Directors from time to time, and there shall be an annual meeting every calendar year. The purpose of annual meetings shall be, except as provided herein to the contrary, to elect Directors, and to transact any other business authorized to be transacted by the members, or as stated in the notice of the meeting sent to Unit Owners in advance thereof.

Section 4. Directors.

4.2 Election of Directors. Election of Directors shall be held at the annual members' meeting except as herein provided to the contrary. (Following sentences omitted because they deal with procedural issues on how notices are to be sent to members, venues, voting, etc).

4.3 Vacancies and Removal

(b) *** I am including only the last relevant sentence here (opening 2 sentences on removal are omitted). The last sentence here reads: "The conveyance of all Units owned by a Director in the Condominium (other than appointees of the Developer or Directors who were not Unit Owners) shall constitute the resignation of such Director.

My comment on (b) above: save for the parenthesized phrase, this clause would almost seem to nail the issue of eligibility or lack thereof. Frankly I am a little confused about the bit on "Directors who were not Unit Owners". This could indicate that directors need not be Unit Owners or HOA members. I have checked for the accuracy of this sentence --- i.e. no typos, omissions etc.

4.4. Term. Except as provided herein to the contrary, the term of each Director's service shall extend until the next annual meeting of the members and subsequently until his successor is duly elected and has taken office, or until he is removed in the manner elsewhere provided. Notwithstanding the ... (I omit this sentence because it deals with Developers --- no longer relevant).

Now compare Section 4.3 (b) to what is stated below.

Exhibit "5" ARTICLES OF INCORPORATION

ARTICLE 10 DIRECTORS

10.1 Number and Qualification. First sentence omitted because not relevant to discussion here. Last sentence reads: Directors must be members of the Association, except for any director named by the Developer prior to turnover of control of the Association to the Unit Owners.

My Comment: you would think this would clinch the eligibility question, but the parenthesized caveat in Section 4.3 (b)*** above leaves this issue in the air, at least for me. If it is not confusing for others here, which article would take precedence?

Looking forward to your comments Kerry and any others. Thanks.
KevinK7 (Florida)
Posts: 1,343
Posted:
Quote:
Posted By KweliN on 07/24/2014 5:01 PM
KerryL1: On the question of the completeness of the bylaws docs, I will get back to you after verifying with a former Board Member later today or tomorrow. I was unable to reach her.

The article numbers do proceed in logical sequence. However the only part that has a table of contents is the first document, "Prospectus" and the pages in this document are in accord with the TOC. The other documents do not contain a TOC. They are Exhibit "4" (By-Laws of the association), Exhibit "4" Schedule "A" (Rules and regulations) and Exhibit "5" (Articles of Incorporation). Since I only have hard copies of said docs provided by the previous owner at closing, I can only verify the page issue after comparing notes with the former BOD member.

Here is a sample of relevant clauses. I include those that you raised questions on (elections, term) and those that pertain to eligibility to become a member of the Board of Directors:

A. Exhibit "4" By-Laws:
Section 3. Members

3.1 Annual Meeting: The annual members' meeting shall be held on the first Tuesday in February or on the date determined by the Board of Directors from time to time, at the place and at the time determined by the Board of Directors from time to time, and there shall be an annual meeting every calendar year. The purpose of annual meetings shall be, except as provided herein to the contrary, to elect Directors, and to transact any other business authorized to be transacted by the members, or as stated in the notice of the meeting sent to Unit Owners in advance thereof.

Section 4. Directors.

4.2 Election of Directors. Election of Directors shall be held at the annual members' meeting except as herein provided to the contrary. (Following sentences omitted because they deal with procedural issues on how notices are to be sent to members, venues, voting, etc).

4.3 Vacancies and Removal

(b) *** I am including only the last relevant sentence here (opening 2 sentences on removal are omitted). The last sentence here reads: "The conveyance of all Units owned by a Director in the Condominium (other than appointees of the Developer or Directors who were not Unit Owners) shall constitute the resignation of such Director.

My comment on (b) above: save for the parenthesized phrase, this clause would almost seem to nail the issue of eligibility or lack thereof. Frankly I am a little confused about the bit on "Directors who were not Unit Owners". This could indicate that directors need not be Unit Owners or HOA members. I have checked for the accuracy of this sentence --- i.e. no typos, omissions etc.

4.4. Term. Except as provided herein to the contrary, the term of each Director's service shall extend until the next annual meeting of the members and subsequently until his successor is duly elected and has taken office, or until he is removed in the manner elsewhere provided. Notwithstanding the ... (I omit this sentence because it deals with Developers --- no longer relevant).

Now compare Section 4.3 (b) to what is stated below.

Exhibit "5" ARTICLES OF INCORPORATION

ARTICLE 10 DIRECTORS

10.1 Number and Qualification. First sentence omitted because not relevant to discussion here. Last sentence reads: Directors must be members of the Association, except for any director named by the Developer prior to turnover of control of the Association to the Unit Owners.

My Comment: you would think this would clinch the eligibility question, but the parenthesized caveat in Section 4.3 (b)*** above leaves this issue in the air, at least for me. If it is not confusing for others here, which article would take precedence?

Looking forward to your comments Kerry and any others. Thanks.

My understanding of the passages listed is that a director may not have been a unit owner had they been appointed by the developer and that in the future, if a director were to sell their property they would immediately resign.

KevinK7 (Florida)
Posts: 1,343
Posted:
So is this a condo or a HOA?
MelissaP1 (Alabama)
Posts: 13,836
Posted:
How do we know the information is accurate? The OP said they have only been there 3 months. It can take up to 6 months or more for information to reflect ownership. Especially if you buy a foreclosure. After I bought my house I waited a few months to file my homestead tax at the courthouse. So it took quite awhile for records to reflect I was the owner.

Two things assured in life... Death and taxes. Ownership may be reflected in the tax filings. However, they are not always up to date for the first year. Plus my bank in my escrow pays my taxes. So it may look like my bank owns the property. Which technically they do as I do NOT have title till I pay off my loan.

I would like to know why one would look this information up in the first place? sounds like someone does not like a board member... Witch hunting 101 tactic...
Former HOA President
AnnH5 (Florida)
Posts: 304
Posted:
Quote:
Posted By KerryL1 on 07/24/2014 7:53 AM
Ann's citation from the statute seems to say that directors must be owners (members) As you know, I wanted someone from FL to jump in. Can you please cite your source, Ann? I totally believe you, but Kweli may want to read more from that section.

It doesn't matter how old and odd your bylaws are. Unless they are superseded by state law, they rule.

I still say that with the election so soon, don't bother with the status of this director& prez unless he runs again. Even then, make sure he's not eligible.


My source is the statute itself.
KevinK7 (Florida)
Posts: 1,343
Posted:
Quote:
Posted By AnnH5 on 07/23/2014 6:29 PM
Per Florida statute: Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. All members of the association are eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held; provided, however, that if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting.

“Member” means a member of an association, and may include, but is not limited to, a parcel owner or an association representing parcel owners or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee.

Therefore, if the Board President does not meet the definition of "member" as defined by our statutes, he or she is ineligible to sit on the Board.

Here is the relevant passage:

(9) ELECTIONS AND BOARD VACANCIES.—
(a) Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. All members of the association are eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held; provided, however, that if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting. An election is not required unless more candidates are nominated than vacancies exist. Except as otherwise provided in the governing documents, boards of directors must be elected by a plurality of the votes cast by eligible voters. Any challenge to the election process must be commenced within 60 days after the election results are announced.

While there is mention of "members," the first sentence is perhaps the most important one. Elections must be conducted in accordance with the "governing documents."

Here is the definition of "governing documents:"

(8) “Governing documents” means:
(a) The recorded declaration of covenants for a community, and all duly adopted and recorded amendments, supplements, and recorded exhibits thereto; and
(b) The articles of incorporation and bylaws of the homeowners’ association, and any duly adopted amendments thereto.

So, if the C&Rs, bylaws, or articles of incorporation permit non-members to be board members then they could be elected "in accordance with the procedures set forth in the governing documents of the association."
KerryL1 (California)
Posts: 14,550
Posted:

Keeping in mind that I'm not in the legal field I'd say that this phrase clearly states that if a director no longer owns a unit in your HOA, they have, in effect, resigned: (b): "The conveyance of all Units owned by a Director in the Condominium...shall constitute the resignation of such Director." The preceding explains your earlier quote: "The BOD can solicit volunteers to fill vacancies in the event a member . . .sells his/her unit."

But I do think the clincher is here in your Articles of Incorporation: "Directors must be members of the Association, except for any director named by the Developer prior to turnover of control of the Association to the Unit Owners." The reason is that IF the bylaws contradict the Articles, the Articles prevail in the hierarchy of HOA documents.

But I don't believe there is a contradiction with the parenthetical phrase that concerns you: "(other than appointees of the Developer or Directors who were not Unit Owners)." The reason is that I believe that "Directors who were not Unit Owners" refers back to those appointed by the developer.

It's quite clear in the way above that owners who sell all of their units in your HOA may no longer serve as directors.

I guess the term question is that directors only serve for one year?? That is unusual form what I've read on this forum.

It's quicker & cleaner to type (and to read) if you type an ellipsis . . . to show us you've left something out of a quote.

But I'd still wait to see if the non-owner director is going to seek re-election or even just ask him. If it seems he'll run, bring his lack of a qualification to the attention of the Board in the way I mention waaaaay above (I think).

I see your point, Tim. Ann's citation simply says that all owners qualify. But if it means all residents of the HOA, or all residents of /FL or the USA, wouldn't it be stated that way?? Don't know. Gotta go, so can't read the condo laws that you reference.
AnnH5 (Florida)
Posts: 304
Posted:
My apologies if the discussion is about a condominium. I did quote FL 720 for HOAs and condos/timeshares fall under 718. That is an area (condos) that I know nothing about and it is probably even trickier with time shares.
KweliN (Florida)
Posts: 19
Posted:
Kerry:

I had learned that the current President resisted attempts to oust him after showing he had a title deed to the property. But that could have been the document prior to his property being taken over by a bank in 2012. A certificate of title clearly shows the President's condo was owned by the bank since 2012. However, the Board members could have asked for property tax and amenity fees receipts. That was not done. And so he remained in his post. Unusual.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Kweli,

It appears that, based on your citation, that the governing documents do require that Directors be members of the Association (unless appointed by the developer).

It also appears that, again based on your citation, that when a Director no longer holds property in the development that they have resigned as Director.

Question: Do your governing documents require that any Officers also be Directors (for example: my association requires that the President and VP also be Directors of the Association)?

Going back to your initial question on who do you report this to - you would report the issue to the Board of Directors. I'd suggest keeping the letter polite and worded as if the Board is unaware of the issue. Provide your source for believing that the President no longer owns property and cite Article 10 of the Articles of Incorporation and section 4.3 of the Bylaws. Then see what the Board does.

TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By KerryL1 on 07/24/2014 6:01 PM

I see your point, Tim. Ann's citation simply says that all owners qualify. But if it means all residents of the HOA, or all residents of /FL or the USA, wouldn't it be stated that way?? Don't know. Gotta go, so can't read the condo laws that you reference.

Residency wouldn't enter into the issue (as it is not mentioned in the section cited by Ann).
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By KweliN on 07/24/2014 6:16 PM
K
I had learned that the current President resisted attempts to oust him after showing he had a title deed to the property.

Ahh, so this issue has been brought up in the past.

Since the issue was previously brought up and the Board made a decision, you may need additional proof (perhaps the tax records you mentioned earlier) to have the Board revisit the issue.
KerryL1 (California)
Posts: 14,550
Posted:
When, exactly is the election, Kweli?
KweliN (Florida)
Posts: 19
Posted:
Kerry, a new management company has been contracted starting August 1, 2014. A notice indicates the election to be held on the 25th of this month has been cancelled. The old management company had been aggressive on this issue and some BOD members were not happy; the MC's contract was terminated. No new election date has been announced.
KweliN (Florida)
Posts: 19
Posted:
Property tax records/receipts would be better than HOA fee receipts, in case the BOD backdates them. One member of the BOD recently resigned and this was one issue that precipitated her resignation, according to what she told me.
KweliN (Florida)
Posts: 19
Posted:
Melissa, The county records already reflect my name as the OP. The property was purchased cash. There is no witch hunting because I only saw the current President once and have not talked to him. I do not mingle and only know one neighbor who is a tenant (not a member). I am retired and have no political ambitions but simply worry that non-members are elected to office and make decisions that affect me (a member).
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By KweliN on 07/25/2014 4:21 AM

but simply worry that non-members are elected to office and make decisions that affect me (a member).

Well, perhaps you can submit your name to the nomination committee. Perhaps, by volunteering to serve yourself there will be enough choices in the candidates to keep the individual from being re-elected even if they do get on the ballot.
KweliN (Florida)
Posts: 19
Posted:
Tim, first, I am not sure I have the stomach for dealing with the affairs of a large number of unit owners here. Second, I travel off and on. So that would be unfair to potential candidates who can attend meetings regularly. An absentee Director may not be such a good idea. But this I know, especially that these discussions here have heightened my awareness --- when I next get candidate resumes, I will at the very least verify that they are bona fide members of the Association from public records. And if I happen to be around at the time of the elections, I will cast my vote. If the current non-member President runs, I intend to raise the issue in a diplomatic way as someone suggested here (if no one else does). Be that as it may, the chief concern I had (eligibility of membership to the BOD) has been clarified by the very informative responses here and I thank everyone for their input.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By KweliN on 07/25/2014 7:56 AM

Tim, first, I am not sure I have the stomach for dealing with the affairs of a large number of unit owners here. Second, I travel off and on. So that would be unfair to potential candidates who can attend meetings regularly. An absentee Director may not be such a good idea.

Kweli,

I agree that, depending on the Association, an absentee Director may be an issue. Although, I am also aware of many Associations where being an absentee Director isn't an issue. Meetings are worked around travel. Arrangements can be made for conference calls during the meeting. There are options to make those work.

The larger concern should be, if there aren't enough volunteers willing to serve, then those who are willing to serve will be the ones making the decisions that affect your life. It won't matter if they are good at it or if they don't want to follow the governing documents. They will have been the ones elected.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
Exactly Tim... Those who are willing to participate are the ones who get things done. So don't complain if your not one of them and decided to let others do the job. You have a say so on who does the job by using your vote or by participating yourself. If not, then let the people do their jobs you do not want to do or be a part of.

HOA is run by VOLUNTEERS... The last time I checked... I have not been picky about any "free labor"...
Former HOA President
KweliN (Florida)
Posts: 19
Posted:
Tim, I admire your optimism to a fault and your inspiring comments almost embolden me to reconsider. However, I have lived in the county long enough to realize that the diversity (especially with regard to the levels of education, professionalism, ethical behavior, language issues) that exists in a "randomized" community such as this one may render the task daunting beyond the issue of simply following rules.

For instance --- and this I gathered from the Director who recently resigned --- her replacement does not speak, read or write English. Now, I can barely get by in Spanish. Regardless, and I could be wrong, I am not sure that this lady has read (as yet untranslated) our governing documents that are written in rather specialized English. She is one of three BOD's. Whether or not such an individual can certify in good faith, that she read and understood said docs is not clear to me. A signed statement to this effect, as you know, is now required for BOD members. The fact that she is an active Director, implies that the Board has done due diligence in ensuring that she has met this requirement.

Granted, this does not mean she may not be diligent, ethical and reliable and with the community's interests close to her heart. Even then, I would feel like a fish out of water whenever a translation is called for and the proceedings could be significantly slowed down because of my own lingo deficiencies. This may seem like a trivial reason, but I would feel somewhat awkward being a broken cog in that wheel. There you have it: we have a President who by some accounts posted here, is not eligible, but has already served one term. Next we have a BOD member who does not understand the language of the documents she professes to be guided by and perhaps protect. Honestly I do not know quite what to make of this, but my own constitution would rule against that level of participation. I hope I do not come across as being overly judgmental.

The point here is to highlight my own shortcomings in dealing with these kinds of situations, and together with my itinerant ways, it may be best for me to remain an outsider. And when the situation demands it, perhaps make the occasional fuss as a member and hope it gets some attention. Above all, I remain less comfortable being represented by a Director who does not pay his amenity dues and property taxes. Perhaps that may be my ultimate Freudian strategy in convincing myself that I have leveled the playing field. And now back to my last response to your post: little stomach; off and on travel, lol.
KweliN (Florida)
Posts: 19
Posted:
Melissa, I have clearly stated my intention to vote and will indeed vote, as I have done in the other HOA where I lived. That does not mean that I should also volunteer as a candidate. Voting and leading are separate issues and the former may not be a condition for the latter IMO. The issues I raised here deal with eligibility and how to deal with it in the event of possible violation. I speak as a member, not as an aspiring candidate.
KerryL1 (California)
Posts: 14,550
Posted:
How many units are in your HOA, Kweli? This helps me "see" your situation better. How many directors are there supped to be per your bylaws? How many do you have (did I read three)?

When we hired our current MC, the then board pushed off the election for a month beyond its scheduled annual date for two reasons:
1. The new MC and Prop. mgr (PM) wanted to learn our documents, condo twin tours, etc.
2. CA state legislation had dramatically altered annual election procedures, so new election rules had to be written, etc.

So perhaps your new MC will do a good job. Our MC has in its contact with us that it is "not obligated" to carry out any board directives that oppose the law or our governing docs. Perhaps there's something in your contact with your new MC that says something similar. If so, this would mean that the MC shouldn't even put the non-owner's name on the ballot. In FL, I believe, as in CA, owners have the right to inspects executed contracts. So request such an inspection in wiring to the PM.

Since you don't want to be on the Board for good reasons, imo, try to find someone who will serve and help campaign for her/him. Stuff envelopes, get to know your neighbors.

Telling us that your board is wrong won't change anything, you need support from your fellow owners.
KweliN (Florida)
Posts: 19
Posted:
Kerry, there are 126 units in the HOA, about half of which are owner occupied. To the best of my knowledge, there are currently 3 active members in the BOD. The bylaws specify 3 to 5 members with 7 max. The office holders (President, VP/Sec, Treasurer, etc.) are appointed by the elected Board Members.

I also hope that the new MC will do a credible job. Their first notice indicates that that may be the case, i.e. they will discharge their responsibilities unimpeded. The idea of requesting a contract is sound and I will write to request a copy. The CEO of the outgoing MC has promised to send me contact info for the members which I will use to do as you suggest (before her current contract expires).

The only way I can identify potential candidates is when their resumes are distributed to members (as I recall some 30 days before the elections). Thereafter I will be able to campaign for those I consider suitably qualified at the time. Initially though, I will check their ownership status in the county records to satisfy myself that they meet at least one membership eligibility criterion. Whether or not the MC will formally request such proof (along with verifying amenity payment issues) to determine eligibility for their candidature remains to be seen. That, Kerry, is as far as my participation will allow and hope that it helps.
KerryL1 (California)
Posts: 14,550
Posted:
I'm glad you'll become involved to the extant that works for you.

Maybe the MC will check the ownership status of the candidates for the Board---but they probably aren't required to. In my HOA, it's the Board's job and our bylaws require a nominations comm. but all they do is have the PM check to make sure the candidates are owners.
KweliN (Florida)
Posts: 19
Posted:
I will do my best to participate as much as I can (meetings, etc).
JohnC46 (South Carolina)
Posts: 14,265
Posted:
Kwe

Have you decided that BOD Members must be owners and/or residents? Do you like what you found and if not, why?

Thanks
KweliN (Florida)
Posts: 19
Posted:
John, In my posts here my questions mostly focused on whether or not non-members are eligible. Based on the interpretations of the Statutes and (our bylaws) posted here, only members are eligible. I really appreciate the input of all here. This site is a great resource for people like myself. I have learned a lot. Kudos to all!

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