Q. I have a question about filling vacancies on the board of a condominium. Our condominium had an election and three people ran for two open seats. The day after the election, one of the newly seated directors resigned from the board. How is the vacancy filled? Does the third person that ran for the board have to fill the open position?
—Needing an Election Primer
A. “Not necessarily,” says attorney Jennifer Biletnikoff of the firm Becker & Poliakoff, which has offices throughout Florida. “If a vacancy on the board occurs after an election, an unsuccessful candidate does not automatically take a seat on the board. Let me explain. Typically, vacancies on the board are caused by the expiration of directors’ terms and are filled by electing new board members at an association’s annual meeting. However, when a vacancy occurs for reasons other than the expiration of a director’s term (such as a director’s resignation), you should first look to your association’s bylaws to see if there are any provisions that address filling vacancies. If your association’s bylaws are silent on this topic, the Condominium Act (Chapter 718, Florida Statutes) states that any vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum. The remaining directors on your association’s board could appoint any eligible individual to fill the vacancy for the unexpired term of the seat being filled. In your specific scenario, the board could choose to appoint the unsuccessful candidate to fill the vacancy but is not required to.
“In the alternative, the Condominium Act also states that the board may hold an election to fill the vacancy. However, if the board opts to hold an election, the election procedures must comply with the requirements set forth in the Act. For example, the association must send a first notice of the date of the election to each unit owner entitled to a vote at least 60 days before the scheduled election. Any unit owner or other eligible person desiring to be a candidate for the board must give written notice of intent to be a candidate to the association at least 40 days before the election. Essentially, all of the statutory requirements for an election must be followed if the board decides to hold an election to fill the vacancy. It is important to note that unless your bylaws provide otherwise, a board member that is either appointed or elected to fill a vacancy shall fill the vacancy for the unexpired term of the seat being filled.”