Hi All,
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The following question comes from Fran by Email; I’m sure it will raise some interesting responses by our BLOGGERS:
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“At our recent election of our association's board members one of the names on the ballot was a renter who had more votes than three other unit members and since we needed 5 board members she was elected. The elections were conducted by Seacrest for us, and the unit owner had submitted to Seacrest with the nomination form, a signed but not notarized letter giving the renter (who is a family member) authority to act as the unit owner's authorized representative. We didn't question the name on the ballot as we thought Seacrest knew what the correct requirements were. Since then we have heard that a renter cannot be a board member, but don't know if it true or not, and if the letter was legal since it was not notarized.
The following question comes from Fran by Email; I’m sure it will raise some interesting responses by our BLOGGERS:
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“At our recent election of our association's board members one of the names on the ballot was a renter who had more votes than three other unit members and since we needed 5 board members she was elected. The elections were conducted by Seacrest for us, and the unit owner had submitted to Seacrest with the nomination form, a signed but not notarized letter giving the renter (who is a family member) authority to act as the unit owner's authorized representative. We didn't question the name on the ballot as we thought Seacrest knew what the correct requirements were. Since then we have heard that a renter cannot be a board member, but don't know if it true or not, and if the letter was legal since it was not notarized.
Thanks for any comments on this situation”.
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Very neat question Fran;
just complex enough for me to recommend that you seek the opinion of an Attorney.
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Very neat question Fran;
just complex enough for me to recommend that you seek the opinion of an Attorney.
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I will point out a few items from Florida Statute 718.
I will point out a few items from Florida Statute 718.
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I believe the letter appointing the Renter as the Unit Owners Authorized Representative is of minimal weight; Notarized or not.
I believe the letter appointing the Renter as the Unit Owners Authorized Representative is of minimal weight; Notarized or not.
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I think this issue is dealt with in the Statute, but not unambiguously:
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Hence in my opinion; your Renter is ineligible for election unless your Bylaws specifically allow for such a provision.
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718.112(2)(d)1. 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. (see below) 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.
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718.112(2)(d)3. 3. 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, deliver, or electronically transmit, whether by separate association mailing or included in another association mailing, delivery, or transmission, 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 (See Below) desiring to be a candidate for the board must give written notice to the association not less than 40 days before a scheduled election
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eligible person other than unit owners, would be anyone expressly permitted by the bylaws or other governing documents, e. g. corporate officers, in the case of a unit owned by a corporation, may serve if expressly permitted by the governing documents. Non-owning spouses of unit owners may serve, if the governing documents expressly permit it.
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SEE ALSO: http://www.ccfj.net/CCFJBoardmemberowner.htm#1
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Dave Israel
Hence in my opinion; your Renter is ineligible for election unless your Bylaws specifically allow for such a provision.
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718.112(2)(d)1. 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. (see below) 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.
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718.112(2)(d)3. 3. 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, deliver, or electronically transmit, whether by separate association mailing or included in another association mailing, delivery, or transmission, 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 (See Below) desiring to be a candidate for the board must give written notice to the association not less than 40 days before a scheduled election
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eligible person other than unit owners, would be anyone expressly permitted by the bylaws or other governing documents, e. g. corporate officers, in the case of a unit owned by a corporation, may serve if expressly permitted by the governing documents. Non-owning spouses of unit owners may serve, if the governing documents expressly permit it.
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SEE ALSO: http://www.ccfj.net/CCFJBoardmemberowner.htm#1
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Dave Israel
13 comments:
Where do I look to see if a convicted felon has had his rights to vote restored?
AMAZING!!
Consider: there is a president and board members in that association.
The president, most likely, has the authority to cast his/her vote at the delegate meetings on issues concering the whole village.
How many more associations are as uninformed as this one is?
AND DOESN'T THAT SCARE THE HELL OUT OF YOU WHEN PEOPLE CALL THIS VILLAGE "OUR PARADISE"
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There isn't enough David Israels to educate these people.
Professional Management is the answer.
In the Condominium Act, the reference to 'or other eligible person' usually refers to an occupant of a corporately owned unit in which an officer, employee, or other designee is named on the voting certificate and is specified (in the Bylaws) as being elligible to serve on the board. A trustee or grantor of the trust owned unit may also be eligible to serve on the Board. Also, in the furtherance of estate planning, a unit owner(s) may transfer his unit to the children or other family member(s) or other person(s). In such an event such owner who may have been on the Board (and maybe even a long time President), may be eligible, if the Bylaws do so provide, to serve on the Board.
In the 1999 Model Documents, ARTICLE IV "Directors", "The affairs of the association shall be governed by a Board of Dirctors composed of not less than five (5) and not more than seven (7) persons as provided in the Articles of Incorporation if applicable." The use of the word 'persons' permits, in Rod's opinion, the eligibility of non-association members to be eligible to serve on the Board of Directors. I have his written legal opinions on this subject over a four to five year period,
the same question being asked in different administrations. The problem with this is as follows: Let's say a tenant is permitted to run for the Board, or is appointed by the Board, is the association required to send this tenant 1st notice of election every year in order to qualify to run? In addition to the owner of record who must also receive Notice of Election? What of an owner in a different association who used to own but no longer does? Are such 'persons' only eligible to be appointed by the Board if vacancies exist without the right to 'run for the board'? What of an owner and his tenant, or the new transferee and their parent who occupies the unit, can they then both serve on the Board? This is contrary to the purpose and intent of the Legislature in prohibiting multiple owners of units from serving on the Board at the same time. If a tenant (or other person)is given power of attorney to act for the owner and is given the right of substituon to serve on the Board, the use of the word 'persons' in the Bylaws may permit such person to serve on the Board (my opinion). Many associations that have adopted the 1999 Model Documents (and many who have not so adopted these documents), have also adopted a Bylaw amendment that restricts eligibily to serve on the Board to association members only.In such a case, no power of attorney could confer such right.
Anonymous 6:24,
A Delegate to UCO MUST BE A MEMBER OF UCO, WHO ALSO MUST BE A UNIT OWNER IN CENTURY VILLAGE.
The following citation from Florida Administrative Code may be instructive:
61B-23.001
(3) Where the declaration, articles of incorporation, or bylaws preclude non-unit owners from serving on the association’s board of administration, one acting under a power of attorney from a unit owner is similarly precluded from serving on the board unless he or she is a unit owner.
Thus, the use of the word 'persons' in the association documents, and no additional amendment restricting board eligibility to association members or unit owners, a person acting under a power of attorney for a unit owner would be eligible to serve on the Board.
The Articles of Northampton I, my association, state in part "...who must be record owners of an apartment in Northampton "I" Condominium, Century Village, West Palm Beach, Florida."
Again, 61B-23.001 F.A.C.
(3) Where the declaration, articles of incorporation, or bylaws preclude non-unit owners from serving on the association’s board of administration, one acting under a power of attorney from a unit owner is similarly precluded from serving on the board unless he or she is a unit owner.
If the tenant was elected to an association board, and any document (as referenced above)of that association requires Board Membership (ownership) for eligibility, then that newly elected Board Member is ineligible to serve. The Division would likely require that the candidate with the next highest number of votes would be considered elected to the Board. I don't believe that they would call for a new election, but the election would certainly qualify as a dispute if filed with the 'Division'.
Anonymous 2:24
In 2008 the Florida Legislature placed additional qualifications to serve on the Board. With regard to convicted felons, their Civil Rights had to be restored for a five year period. This is a more stringent requirement that in previous years when Statute required "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."
As you see, Statute previously referred only to the restoration of VOTING RIGHTS IN THE JURISDICTION OF RESIDENCE.
Present Statute now refers to CIVIL RIGHTS being restored (for five years). Voting rights are only one of the Civil Rights which are stripped from a convicted felon. If only one's voting rights are restored, it may not necessarily mean that (all) Civil Rights have been restored, e.g. ability to hold office,hold occupational licences issued by the State, service as a juror, etc.
Did the Legislature intend that voting rights restored is equivalent to Civil Rights restoration.
Dave could have a field day with this one!
61B-23.0021 F.A.C.
6)The failure of the written ballot to indicate THE NAME OF EACH ELIGIBLE PERSON shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include a revised ballot with the names of all eligible persons within the time required by this rule. If an amended second notice cannot be timely mailed, transmitted or delivered, then the association must re-notice and reschedule the election. If the election has already been held, under these circumstances the association SHALL CONDUCT A NEW ELECTION.
In the present case, THE NAME OF EACH ELIGIBLE PERSON was sent out in 2nd notice of election (with the addition of the name of an ineligible person).
It is now my opinion that the Association should voluntarily hold a new election. I have it on good authority that Seacrest would, upon request by the Board, hold another election at no extra charge to the Association and definitely assure you that Seacrest will amend their election procedures so that such an error will not occur in the future.
To Randall at 9:22:
Does UCO have a membership roster that can prove who is or who is not a member?
Who checks that roster??
Anon 9:22
WPRF sends UCO updates to membership (unit ownership)on a regular basis. The question as to whether UCO regularly checks to see if Delegates and Alternate Delegates are in fact unit owners... not that I know of. There are likely many associations with board members who 'secretly' transferred their ownership to their children, and continue to serve on the Board and hold Office.
To Randall 11:00:
your answer is implying that unit ownership automatically means membership in UCO..
AND THAT IS NOT DISCLOSED AT THE TIME OF SALE.
Looking forward to your explanation
anonymous 11:00,
You know as well as I do how sticky that answer is. The frequently asked Questions and Answers sheet required to be give to each prospective owner does not list membership in UCO as a mandatory organization (membership in UCO being considered voluntary). A copy of the annual budget should also be given to prospective owners. There is always a line item in the operational budget for UCO dues. This does not rise to 'full disclosure'... the point I believe you are making.
It amounts to this: membership in UCO is voluntary. the failure to submit monthly UCO payments as part of the monthly condo assessments would constitute a delinquency. Therefore, how is membership in UCO voluntary if you (as an owner)'cannot refuse (to comply with) membership'?
I've never been comfortable with this either. The only alternative that I can see is to take a vote to change UCO's Articles of Incorporation to make membership mandatory. We would then need to file with the Division of Timeshares, Condominiums and Mobile Homes as a Master (Condominium) Association. We would then be bound by the Condominium Act. I'm not sure I would be comfortable with UCO becoming a Master Association. How about you?
How should we proceed? What course is in the best interests of Century Village?
Randall:
I appreciate your explanation regarding UCO membership. You asked what is best for the village; perhaps changing the Articles of Incorporation of United Civic Organization etc.
In my opinion, UCO must step into the legal arena for the sake of the unit owners as well as UCO itself. I am not the one to say how you're going to get there, but I do know that with a GOOD attorney and people like David Israel, Bob Marshall, Ed Black yourself and others, this can be done for the good of all.
Every year more laws are being piled on the books regarding condo associations, and from our experience, we all know that the Associations are incapable of folllowing the law. UCO , as it has been, is not a guiding light. For the most part, they are a big hinderance to what could be staight forward dealings with the law as a guide. I believe , under the LAW, harmony and joy could be experienced by ALL.
Thanks for your kind words and vote of confidence in the named individuals, including myself.
After the installation of the new V.P.'s is completed (March 15th), there is a much better chance that UCO and its functions will be re-evaluated from soup to nuts.
I don't know what the future holds as my crystal ball is in the shop.
What I do know is, that at present, the 309 separate associations in C.V. can make their own mistakes and pay whatever price is on the legal menu without involving UCO. Unless there is a massive consolidation effort of associations, UCO could never become a Master Association. Too much power in the hands of too few (knowledeable)individuals.Professional management, not one PCAM, Mr.Pat Blunck, would nearly suffice to run this Village. Also, how many associations do you think would be willing to give up even a little of their independence? Could you imagine 200 associations bound to a master condominium association and 109 holdout associations doing their own thing? To reiterate, associations pay their own freight for mistakes, which is one of the reasons why UCO is probably still afloat after 26 years. Let us wait a week or so until the new administration gets comfortable (and some senior members less comfortable) and take it from there. 'Getting legal' as you might word it, is easier said than done. Let's take it one step at a time. I'm game!
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