Q: I read an article posted online from your firm regarding COAs are able to restrict board members to individuals that are listed on the deed. My question is, does this apply to HOAs as well. Florida statute 720.306(9)b states, “all members of the association are eligible to serve on the board” and then goes on to list exceptions of a delinquent member or a felon. Can an HOA actually further restrict who can serve when statute specifically states ALL members? Just a little more info on our community documents. The Articles of Incorporation state that directors need NOT be members. A new Bylaw (which according to our documents is superseded by Articles if there’s a conflict) was just added before these elections that states, to be eligible members must be on recorded deed. Our documents define member as any tenant. So, what is correct? Is it the statute that says all members are eligible? Or, can we allow a non-member to serve, but members have to be on deed?
– A.D., Marco Island
A: Florida Statute 720.301(10) provides that the term “Member” means a member of an association as defined in the governing documents, and may include, but is not limited to, a parcel owner or an association representing parcel owners, or a combination thereof, and includes any person or entity obligated by the governing documents to pay an assessment or amenity fee. So, it depends on how the governing documents define the term member. In your case the term member is not limited to persons whose name is on the title to the property. So, I agree it appears non-owners can serve on your Board despite the Bylaw change because the Articles of Incorporation are a superior document to the Bylaws. If the Articles and Bylaws defined member as being a person named on the title, then non-members/non-owners would not be eligible.
Richard D. DeBoest, II, Esq. is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. T o ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.