Clarification of FS 718

[techman]

My question involves a condominium located in the State of: Florida
Our annual meeting was in December and the election was carried out without having candidates sign the new certification forms as per FS 718.112(2)(d) 3. Should this make the election null and void? If so how is this remedied.

Also FS 718.112(2)(d) 1 is vague in that it seems to say that unless stated in the bylaws an owner can only serve for one year and then sit out a year, or if in our case we have two year staggered terms then an owner can serve for two years and sit out a year. We had directors run and elected who had been directors for the last two years.

Any clarification will be appreciated.

[Mr. Knowitall]

The members of the board shall be elected by written ballot or voting machine. Proxies shall in no event be used in electing the board, either in general elections or elections to fill vacancies caused by recall, resignation, or otherwise, unless otherwise provided in this chapter. Not less than 60 days before a scheduled election, the association shall mail or deliver, whether by separate association mailing or included in another association mailing or delivery including regularly published newsletters, to each unit owner entitled to a vote, a first notice of the date of the election. Any unit owner or other eligible person desiring to be a candidate for the board must give written notice to the association not less than 40 days before a scheduled election. Together with the written notice and agenda as set forth in subparagraph 2., the association shall mail or deliver a second notice of the election to all unit owners entitled to vote therein, together with a ballot which shall list all candidates. Upon request of a candidate, the association shall include an information sheet, no larger than 81/2 inches by 11 inches, which must be furnished by the candidate not less than 35 days before the election, to be included with the mailing of the ballot, with the costs of mailing or delivery and copying to be borne by the association. The association is not liable for the contents of the information sheets prepared by the candidates. In order to reduce costs, the association may print or duplicate the information sheets on both sides of the paper. The division shall by rule establish voting procedures consistent with the provisions contained herein, including rules providing for the secrecy of ballots. Elections shall be decided by a plurality of those ballots cast. There shall be no quorum requirement; however, at least 20 percent of the eligible voters must cast a ballot in order to have a valid election of members of the board. No unit owner shall permit any other person to vote his or her ballot, and any such ballots improperly cast shall be deemed invalid, provided any unit owner who violates this provision may be fined by the association in accordance with s. 718.303. A unit owner who needs assistance in casting the ballot for the reasons stated in s. 101.051 may obtain assistance in casting the ballot. The regular election shall occur on the date of the annual meeting. The provisions of this subparagraph shall not apply to timeshare condominium associations. Notwithstanding the provisions of this subparagraph, an election is not required unless more candidates file notices of intent to run or are nominated than board vacancies exist.

What certification forms are you talking about?

There shall be an annual meeting of the unit owners. Unless the bylaws provide otherwise, a vacancy on the board caused by the expiration of a director's term shall be filled by electing a new board member, and the election shall be by secret ballot; however, if the number of vacancies equals or exceeds the number of candidates, no election is required. If there is no provision in the bylaws for terms of the members of the board, the terms of all members of the board shall expire upon the election of their successors at the annual meeting. Any unit owner desiring to be a candidate for board membership shall comply with subparagraph 3. A person who has been convicted of any felony by any court of record in the United States and who has not had his or her right to vote restored pursuant to law in the jurisdiction of his or her residence is not eligible for board membership. The validity of an action by the board is not affected if it is later determined that a member of the board is ineligible for board membership due to having been convicted of a felony.

If you think that prevents a board member from serving back-to-back terms, I think you're reading a lot into the statute that's simply not there.

[peppermintpatty]

The 2008 Florida Legislature passed two new bills during their session.

718.112(2)(d)1 F.S. states only that all board members must stand for election at the annual meeting. However, if the bylaws permit staggered terms of no more than 2 years and if a majority of the total voting interests approve, the directors can serve for 2 year staggered terms. It also states that if no one is interested in or demonstrates an intent to run, such person whose terms has expired is automatically reappointed and does not have to stand for election. This is fairly clear. I have to say that I don't understand your interpretation.

718.112(2)(d)3 F.S. requires candidates to certify, on a form provided by the Division, that they have read and understand "to the best of their ability" the condo documents, statute and applicable rules. The form should be submitted along with the notice of intent to run for the board. I feel these are reasonable requests because all too often elected Boards have not even read their own condo documents and are totally unaware of applicable Florida law which only means that matters could end up in lawsuits which in turn clogs up the courts. How do you, in fact, know that they have not signed these forms? And I also have to ask why you would want to make the election null and void? If they have not filled out the form, bring it to the attention of your manager and board. The situation can be remedied without making it more than it is.

Good luck.

[techman]

I know they did not use the state certification forms because I know someone who ran and was told they did dot use the form. Also the problem is that the BOD takes care of resident owners and they see to be happy. Non-resident owners who pay most of the taxes are ignored.

The President was hired full-time as an employee but they will not show his salary when we are given a financial statement. We have been assessed over seven million dollars the past few years without letting owners vote and the BOD refuses to give an accounting of how the money was spent. We know there were a lot on non-english speaking workers present and this might be part of the problem with giving an accounting.

If the economy were better I would just sell out and leave.

[peppermintpatty]

The forms only went into effect after the 2008 session. The Board is required by Statute to sign these forms.

If, in fact, what you say above regarding the salary, financial statements, etc., is true, then either get an attorney to sue or contact the State of Florida, Dept of Business and Professional Regulation, in Tampa or TAllahassee. The number in Tampa is 813-488-1122 and complain. Or, I believe their internet address is www.MyFlorida.com/dbpr. What your association is doing is illegal. They are required by law to have all records open to the owners with certain legal exceptions.