After having a conversation with one of our attorney affiliates. Solutions would like to share a followup concerning 718.1124. The question arose whether it was in the best interest of Associations to attempt to solicit all officer vacancy seats.
(Rachel DeCamp) I believe it is in the best interest of all associations to fill all 5 positions whenever possible or if it is a small association or an association with limited volunteer activity, the current Board should show some activity and/or interest to fill any vacancies. It's not all about having enough for quorum. It is about having an amount to prevent an association from any petitions or at least showing the BOD has initiated the fiduciary and statutory responsibility to do so.
Statute Overview:
718.1124 Failure to fill vacancies on board of administration sufficient to constitute a quorum; appointment of receiver upon petition of unit owner.—
(1) If an association fails to fill vacancies on the board of administration sufficient to constitute a quorum in accordance with the bylaws, any unit owner may give notice of his or her intent to apply to the circuit court within whose jurisdiction the condominium lies for the appointment of a receiver to manage the affairs of the association. The form of the notice shall be as follows:
Here is the Attorney response:
Hi, Rachel.
I’d say you’re both kind of right. LOL The BOD has a fiduciary duty to enforce the covenants. If the docs say they are to have 5 BOD members, then they have an obligation to have 5 BOD members. If they find themselves with a vacancy, then they need to do everything they can to find a volunteer to be appointed. In my opinion, they should even send a letter to all owners asking if anyone is interested. So I agree with that regard. Having said that, I agree with your interpretation of the law. Statute says any owner can file an action in court seeking an appointed receiver to run the community IF there are not enough members on the BOD to constitute a quorum. Not the case here; as such, there is no potential action for receivership. As long as they have made a good faith effort at filling that seat and have been unable to (and I’d advise they document in their O.R. what those efforts entailed), then they are fine running with 4 until the next election and, no, their actions are not voidable because they had only 4. In fact, if they’ve tried to find a volunteer and can’t, then not only is it “ok” to operate that way, it’s the only option they have. They’ll still need a quorum of 5 (3 total) to conduct business though.
SM ESQ.
