First, we hope everyone is safe and secure in these trying times. As we have stated before, we will get through all of this and be stronger and more adapt when this pandemic passes. But, we cannot let our safeguards down yet. The community associations and managers must continue to monitor the situation and take measures to protect the community residents as needed and as guided by the experts.
Now, to another subject about which we have received many inquiries. It is election season. Many associations are concerned with how to conduct the elections. We discussed the processes for conducting the elections in these trying times in Our Roundtable in December. It is available on our website for viewing for those that did not get to participate in the live production.
An interesting question still out there is regarding term limits. In 2018, the legislature clarified the term limits issue somewhat. The condominium statute now says a board member cannot serve more than eight consecutive years unless he or she receives at least 2/3rds of the votes cast in the election or unless there are not enough eligible candidates to fill the vacancies on the board. The mystery here is related to the eight consecutive years and do terms served before July 1, 2018 count towards the eight consecutive years or do you start counting terms served after July 1, 2018.
There has been much discussion on this issue with most saying we start counting after July 1, 2018. However, the Division of Florida Condominiums, Timeshares and Mobile Homes issued a declaratory statement in: The Apollo Condominium Association, Inc., Case No.: 2018023783, addressing whether the statutory limit of eight consecutive years includes years of service prior to the effective date of the amendment to section 718.112(2)(d)(2), Florida Statutes. Specifically, in Apollo, the Association was scheduled to hold an election after July 1, 2018, the effective date of the statute. One of its board members had served on the board for more than eight consecutive years and was planning to run for re-election. The Division’s Declaration Statement takes the position that “if at the next scheduled election, the current board member has served on the board for eight consecutive years, that board member would be ineligible to serve as a board member unless there are fewer eligible candidates than vacant seats on the board or unless that candidate is approved by an affirmative vote of the unit owners representing two-thirds of all votes cast in the election.” As such, the Division deems the statutory eight-year term limitation to apply retroactively.
Based on the foregoing, a board member may not serve more than eight (8) consecutive years unless approved by an affirmative vote of the 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. This applies retroactively to current board members who have been serving on the board for more than eight (8) consecutive years and who wish to run for re-election.
Any association facing this issue should discuss the term limits with the association legal counsel to determine if this declaratory statement applies to your association.
Just a note about this issue. In the 2020 legislative session, there was a bill introduced that had language making this clear that the terms served before July 1, 2018 do not count. The bill did not pass because of other concerns with the bill. I expect this to come up again on 2021 and make it clear that terms served before July 1, 2018 do not count.
We welcome the New Year with you and wish you the best. Take care and be safe.
Gray Systems, Inc.