As we reported in our April, 2018 issue of BackerReport, the legislature again amended the Condominium Act to address term limits for condominium directors. Before the 2018 amendment, the Act seemed to apply term limits only to those associations whose directors serve two year terms and not those whose terms were for just one year. Section 718.112(2)(d)2 was amended effective July 1, 2018 to apply to all condominium directors no matter whether their terms are for one year or two. The statute now states:

"Board members may serve terms longer than 1 year if permitted by the bylaws or articles of incorporation. A board member may not serve more than 8 consecutive years unless approved by an affirmative vote of 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."

Here is what is clear: A condo director is not prevented from running for another term on the Board just because he or she has already served 8 years; whether he or she may serve, if reelected, cannot be determined until all of the votes are counted.

Here is what remains unclear: The amendment does not clarify whether a particular director's eight years of service prior to the effective date of the statute would disqualify that director from serving another term if he or she is re-elected, but without the votes of two thirds of cast ballots. The amendment does not clarify whether a condo director who has been termed out may serve if there are just enough candidates to fill all of the vacancies; the exception in the statute says it applies only if there are not enough candidates.

There has been a healthy debate among condominium lawyers about whether the amendment applies only to directors' terms completed after the July 1, 2018 effective date of the statute or whether years served before the date of the statute must be considered when evaluating whether a director has been termed out. If the statute is interpreted to apply only to terms that begin after July 1, 2018, we will not need to consider how it applies until 8 years from then. If the statute is interpreted to require calculation of how many years a director has served prior to the effective date of the statute, some directors may be termed out and the statute may create issues for many condo directors at their next election.

The Department of Business and Professional Regulation's (DBPR) Division of Florida Condominiums is the Florida agency that writes administrative rules to implement the Condominium Act and operates the mandatory arbitration program that considers condo (and HOA) election disputes. The Division's personnel has provided conflicting informal, non-binding opinions to practitioners who have asked and Division personnel have even lectured at educational forums for lawyers about how this statute should be interpreted. In some instances, they have said years served prior to the effective date of the statute should be considered and others have said only those years after the effective date should be considered. The Division also issues what are known as Declaratory Statements when requested by parties who are unclear about the applicability of a statutory provision contained in the Condominium Act. Such a Statement was requested by The Apollo Condominium Association, Inc., an association in Marco Island, Florida.

On September 14, 2018, the Division issued a Declaratory Statement in The Apollo Condominium Association, Inc. matter where the Association had posed the question of whether a director's 8 years of pre-July 1, 2018 service on his condo's board of directors would disqualify him from serving another term if elected. The Division stated that the director's 8 consecutive years of pre-July 1, 2018 of service on his board would, in fact, disqualify him from serving another term unless he received two thirds of the votes cast at the next election. The Division's Declaratory Statement offered no legal analysis to support its conclusion and there is no discussion about the arguments which the Apollo attorney may have made in support of his client's position; it appears that the language of the statute was all that was considered by the Division in reaching its conclusion. The Declaratory Statement was signed by the Director of the DBPR, Kevin Stansfield.

While Declaratory Statements of the Division do not have the force of law such that they legally bind other condominiums, for practical purposes, they certainly shed some light on how the Division's personnel interprets the law. Arbitrators at the DBPR, the folks who will consider condo election disputes, are likewise not legally bound to interpret the statute the same as has been previously concluded in Declaratory Statements, but the fact that the Director of the DBPR (effectively their "boss") has already interpreted the statute may certainly influence how they rule when the issue comes before them. Ultimately, the issue may be considered by a trial court after a party obtains an adverse result in a Division arbitration proceeding. After that, it may require a ruling by an appellate court before practitioners have a decision with legal precedential value. Whether that will happen in time to guide your condominium before its next election cannot be accurately predicted, but if experience of how long these matters take to wind through the court system suggests to this author that we will not have a case to reply upon for at least a year from now. Perhaps the legislature will offer more clarifying amendments before then.

If your condominium has directors who may be affected by the term limit language of the Condominium Act, it is important that the issue be discussed with your association's attorney well in advance of the election to strategize about possible solutions and to discuss how the statute may affect the outcome of the election.

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