What Makes a 55+ Community a Legal 55+ Community?

Question: Our election for three open board seats will be held May 9. There are certainly enough candidates on the ballot to fill the open positions. However, one candidate has been on the board for well over eight consecutive years. I understand the Florida Statute 718.112.2.d.2 to permit re-election only if 2/3 of the votes are garnered by this individual.

There have been differing opinions among the association members/owners as to whether or not this statute applies to timeshares, when the clock started for the eight-year rule, and if those previous years can be counted retroactively. We would appreciate a response prior to our having to go to court in case this individual receives enough votes to be in the top three but fails to receive 2/3 of the number of votes cast. Since we believe that this is probably not an uncommon situation, I would expect this is a topic that you have already encountered or will in the near future. – G.H., Vero Beach

Answer: The relevant portion of the law you mention is 718.112(2)(d)2 enacted on July 1, 2018. "A board member may not serve more than eight 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."

There is no exception for timeshare condominiums, so the law does apply. However, there is great debate as to whether the law is retroactive from July 1, 2018, or prospective from that date. My opinion is that the law is prospective, meaning the eight-year clock started on July 1, 2018, so prior years of service before that do not count.

However, the Division of Condominiums holds the opposite opinion, and if a complaint were to be filed, the Division arbitrator would likely rule the person is not eligible.

Question: What does a HOA or Condo Association have to do to be a 55+ community? – J.D., Okeechobee

Answer: In order to qualify to become a 55 and over community you have to meet four basic requirements. First, you must conduct a census and confirm that at least 80 percent of the homes are "occupied" (not owned) by at least one person who is at least 55 years old. This status must be maintained continuously.

Second, the association must promote itself a being a 55-plus community. This is done by having signage posted at the entrance to the community and indicating the same on association letter head and other documents.

Third, the association must conduct a census every two years to document it is maintaining its over 55 80 percent threshold.

Finally, the Declaration must be amended to establish that the community is a 55-plus community. In order to accomplish converting the community, you should consult with legal counsel familiar with these requirements.

Question: My husband and I live in a Coach home community with about 90 units. As a full time resident, I like to attend the board meetings, but they are not held on a regular basis or even in the same place all of the time. Four out of five of our HOA board are part-time residents and decided not to meet at all last summer when they were not here. (We have had part-time board members in the past who called in at the summer meetings).

When I asked at the last meeting if there would be summer meetings this year, the president answered with "We'll meet when we have something to talk about." When another resident asked who would address issues that arise in their absence, she was told to contact the management company. I thought this was the purpose of the board.

I know the board only has to post meeting times 48 hours in advance, but it makes it difficult for residents to know when to attend. Many of us full-time residents (like myself) work, and it would be much easier for us to attend if we knew that meetings were to be held the same day each month.

The board also sometimes meets at our clubhouse and sometimes at the master clubhouse, so anyone interested in attending has to make an effort to be at the right place at the right time. I feel that this has contributed to very poor attendance at the meetings. Is there anything we can do to assure that meetings are held at consistent times and places? – J.R., Port St. Lucie

Answer: The decision of when and how often to hold board meetings is a decision of the board. No matter when a board decides to meet, there will always be a certain number of people who find the time and or place inconvenient. The primary function of the board is to set policy and make substantive decisions. Day-to-day operational functions in furtherance of board decisions are often delegated to the management company.

With that said, a board that does not meet regularly is quite often in my experience making decisions improperly without holding properly noticed Board meetings.

Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. 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.

Editor's note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC., respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.© 2019