Q: Should a condo board president or secretary be a 12-month resident? Our condo board met once last year as our president does not facilitate meetings other than the general meeting once a year.
– L.M., via email
A: Florida condominium law does contain certain restrictions on the eligibility of directors and officers, but residency is not one of them.
For instance, co-owners of a unit in a condo of more than 10 units cannot serve on the board at the same time unless they own more than one unit or unless there are not enough candidates to fill all vacancies.
Owners also may be disqualified from serving as a director or officer if they are delinquent for more than 90 days in the payment of monies to the association.
Directors and officers can be suspended or removed by the state agency that regulates residential condominiums for violating applicable law or administrative rules in the performance of their duties.
Convicted felons are prohibited from serving as director unless their civil rights have been restored for at least five years.
A director or officer is also removed from office if charged by information or indictment with a felony theft or embezzlement involving association funds or property and continues to be ineligible as long as the charges are pending. A director and officer can be reinstated (if the term of office has not expired) and becomes eligible to serve again if the charges are resolved without a finding of guilt.
The state has taken the position that residency restrictions on director eligibility are unenforceable. That is logical to me, because many complexes are virtually vacant during the summer months, and to impose such a requirement would drastically limit an already small pool of qualified applicants willing to serve. Plus, directors can participate in board meetings by conference call (where everyone can hear and communicate with each other) without being physically present.
I suppose that an association, in its bylaws, could restrict service by an officer, such as the president or secretary, to a full-time resident, but this would not be the norm, and I would not recommend it.
This may be a good time to describe the difference between a director and an officer, because the terms are sometimes misunderstood. Directors are elected by the membership (unless automatically elected because the number of candidates does not exceed the number of vacancies) and cannot be removed from office without the vote or written consent by a majority of the membership, unless they are disqualified by law. The board, not the membership, elects the officers. Directors, not officers, vote on board matters.
At a minimum, a condominium association board has to elect a president, secretary and treasurer. Additional officers may be appointed by the board, unless prohibited in the bylaws. Officers may be removed at any time with or without cause by a majority vote of a quorum of the board.
As a rule, the owners have no say over who gets to serve as an officer. Unless the bylaws so provide, an officer does not also have to be a director, although bylaws frequently require that certain offices, such as that of the president, be held by directors.
IS CONTRACT VIABLE?
Q: Our homeowners’ association has a management contract that has not gone out for bid since 2009.
At the March board meeting, the board voted to “roll over” the contract for an additional year. It was explained that doing so was actually more stringent than putting it out for bid because the board would then have the right to cancel it at any time.
The board members also admitted that the bid process is tedious and that they do not like it. Five years have passed since the contract was placed for bid. Does the law make the contract null and void?
– S.J., via email
A: Both the Florida condominium statute and the HOA law contain similar (though not identical) requirements regarding competitive bidding on association contracts for products and services.
Both of those laws exclude contracts with a community association manager (CAM), which term includes both licensed individual managers and management companies that employ licensed managers.
Maybe you are referring to a provision in the HOA law that provides that a contract with a manager, if made by competitive bid, may be made for up to three years.
The law also exempts from competitive bidding requirements any renewal of an existing contract that allows the board to cancel the contract with 30 days’ notice.
Based upon the information that you provided, no violation of the law is apparent to me.
That said, I agree that the competitive bidding process can be tedious, especially for vendors who may correctly believe that their bids are being obtained solely to pressure an existing vendor to lower its price. This can make it difficult for an association to obtain bids.
Still, it is a valuable process and should be regularly undertaken to make sure that the association is getting the best bang for its buck, even in instances where the law does not expressly require it. That includes contracts with CAMs, as well as attorneys, accountants, architects and engineers.
Keep in mind that nothing in the law requires associations to accept the lowest bid for a contract subject to its provisions. Experience, proven results and skill are just as important, or often more so, than the bid price.
Tamela Eady is a Florida Bar board-certified real estate attorney with more than 25 years’ experience, concentrating her practice on community association and real estate legal matters. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
