Can I Serve as a Member of Our Board of Directors?

12 Oct 2021

Anyone seeking to serve as a member of the Board of Directors of a Florida Community Association will need to determine their eligibility to run for the Board, or to be appointed as a member of the Board of Directors.

As an initial matter, please remember that Florida Community Associations’ law is also governed by the Florida “Corporations Not For Profit” Statute, under Florida Statutes Chapter 617.

Under the Florida “Corporations Not For Profit” Statute, the Statute states, under §617.0802, “Qualifications of Directors,” that “directors must be natural persons who are 18 years of age or older. but need not be residents of this state or members of the corporation unless the articles of incorporation or bylaws so require.”

Therefore, an initial inquiry should be made to the Articles of Incorporation, and possibly Bylaws, which will state the qualifications (or lack thereof) to serve as a director.

If the Articles of Incorporation and Bylaws do not require a director to be a “member” of the Association, then any natural person otherwise qualified, and over 18 years of age, may serve as a director.  However, many Associations’ documents do require a director to be a member of the Association, or require that subsequent Boards of Directors, who are elected or appointed after the initial formation of the Association, be qualified members.

This year, the Florida legislature made a minor revision to the Florida Condominium Statute, and revised Florida Statute §718.112(2)(d), by stating that a person who is delinquent in the payment of any “assessment” will not be eligible to be a candidate.  This amends the prior statutory language, which made ineligible anyone who is delinquent in the payment of any “monetary obligation,” which could include fines, fees, or other monies, owed to the Association.

This same Statute makes ineligible any person who has been convicted of a felony, in this or any other state, or any United States territory, or who has been convicted of an offense in another jurisdiction, if that offense would be a felony in the state of Florida.  A convicted felon is not eligible to run for the Board, until the felon’s civil rights have been restored for at least five years.

For Florida Homeowners’ Associations, the disqualification for a felony conviction is similar to the provisions set forth in the Condominium Statute; and the prohibition in being nominated to, or seeking election to, the Board of Directors would apply to any candidate more than ninety (90) days delinquent in the payment of any “fee, fine, or other monetary obligation due to the association….”  The Homeowners’ Statute does, however, under Florida Statute §720.306(9), state that the definition of “any fee, fine, or other monetary obligation…” means any delinquency to the association, with respect to any parcel.  This provision remains somewhat ambiguous, and it is unclear if monetary obligations not directly related to a parcel would disqualify a potential candidate for the Board of Directors.

For candidates to a Cooperative Association Board of Directors, the revisions made to the Cooperative Statute, in Chapter 719.106, track those that were made to the Condominium Statute, with a disqualifying, outstanding, “monetary obligation” now being limited to the failure of a candidate to timely pay cooperative assessments.

After election or appointment, every director in a Florida Community Association, including Associations governed by the Florida Mobile Home Act, must submit a written Certificate evidencing familiarity with the Association’s “governing documents” required by the particular Community Association Statute; or, in lieu of the written Certification (or Affidavit), the Board member may complete and submit an Educational Curriculum Certificate certifying that the Board member has completed an education program, as approved by the Florida Department of Business and Professional Regulation.  The written certification, or the Educational Certificate, must be submitted to the Board no later than ninety (90) days after the date of the director’s election or appointment.

Clayton & McCulloh does, throughout the year, conducts live Board Certification webinars and our pre-recorded CM On Demand Board Certification classes, which will provide Board Members with a Certificate after having successfully completed a Board Member’s educational curriculum.  If you would like to register for our CM On Demand Board Certification classes, please use this link.