Q. We have one board member who is not an owner of his unit; the deed is in his wife’s name as sole owner. Our declaration, Articles of Incorporation, and bylaws are very clear regarding directors: They must be owner-members as they show on the deed. This situation is repeating year after year, and the explanation is that it is OK because they’re husband and wife. Is this correct?
A. According to Robert Rubinstein, office managing shareholder and board certified specialist in condominium and planned development law at law firm Becker & Poliakoff in West Palm Beach, “Florida Statutes, Section 718.112(2)(d)(4)(a), states: ‘A unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before a scheduled election.’ So, the statute allows persons who are not owners to serve on the board, provided they are eligible to be candidates. However, this statute does not give spouses any right to serve on the board if the spouse is not an owner, and there is no other Florida statute or case giving spouses the right to serve on the board if the spouse is not an owner simply because the person is the spouse of an owner. Aside from certain statutory requirements like felony convictions or delinquencies, Chapter 718, Florida Statutes, does not set qualifications for persons who are eligible to serve on the board.
“There are qualifications for directors set forth in the not-for-profit corporation statutes, but they are minimal. Florida Statutes, Section 617.0802(1), just requires a director to be 18 years of age or older. Subsection 2 of that statute allows a grantor of a trust or a beneficiary of a trust to serve on the board, if the trust owns the unit and if the beneficiary occupies the unit. Virtually all condominium associations are not-for-profit corporations and the provisions of Chapter 617, Florida Statutes, are made applicable to condominium associations by virtue of Florida Statutes, Section 718.111(2), as long as there is no conflict with Chapter 718, Florida Statutes. In the off chance a condominium association was formed as a for-profit corporation under Chapter 607, Florida Statutes, it also applies when it does not conflict with Chapter 718, Florida Statutes, by virtue of the same statute with the same condition that it not conflict with Chapter 718, Florida Statutes. Florida Statutes, Section 607.0802(4), contains the identical language requiring directors to be 18 years of age or older and allowing grantors of a trust and beneficiaries of a trust to serve on the board when a trust owns the unit.
“As you can see, nothing gives a non-owner spouse the right to serve on the board, but all the statutes allow anyone 18 years of age or older to serve on the board. Therefore, it is up to the association’s governing documents to determine whether any person who is not an owner, whom the condominium statute defines as ‘other eligible person,’ can serve on the board. In your case, you stated your association’s Articles of Incorporation and bylaws expressly require directors to be owners. That means a non-owner spouse—meaning a spouse whose name is not on the deed to the unit—cannot serve on the board of directors. Accordingly, your association’s practice of having a non-owner spouse serve on the board violates the governing documents and cannot be allowed.”