|Having trouble viewing this email? Click here|
You are receiving this email containing a free newsletter concerning community association law from Backer Aboud Poliakoff & Foelster, LLP because you either asked us to include you or a friend sent us your name. To ensure that you continue to receive emails from us, add BackerReport@bapflaw.com to your address book today. If you haven't done so already, click to SUBSCRIBE FOR FREE so you continue to receive these newsletters.
You may unsubscribe if you no longer wish to receive our emails.
BackerReport is a periodical addressing topics of interest to community associations in South Florida and is provided as a service to the clients and friends of Backer Aboud Poliakoff & Foelster, LLP
All articles are written by attorneys of Backer Aboud Poliakoff & Foelster, LLP (unless otherwise indicated) and are protected by copyright.
It is important to note that court decisions discussed in this newsletter are sometimes subject to change as the parties pursue further appeals or other remedies. The articles that discuss court cases in this newsletter are based upon the courts' decisions that are released when the newsletter was written.
Our November, 2018 issue of BackerReport addressed the Condominium Act's 2018 amendment which modified condo directors' term limits contained in Section 718.112(2)(d)2. You may read the entire article by clicking the link below.
Our article discussed the fact that the amended statute was unclear about whether a particular director's eight years of service prior to the effective date of the statute would disqualify that director from serving another term if he or she is re-elected, without the votes of two thirds of cast ballots.
On September 14, 2018, the Division issued a Declaratory Statement in The Apollo Condominium Association, Inc. matter where the Association had posed the question of whether a director's 8 years of pre-July 1, 2018 service on his condo's board of directors would disqualify him from serving another term if elected. The Division stated that the director's 8 consecutive years of pre-July 1, 2018 of service on his board would, in fact, disqualify him from serving another term unless he received two thirds of the votes cast at the next election. The Division's Declaratory Statement offered no legal analysis to support its conclusion and there is no discussion about the arguments which the Apollo attorney may have made in support of his client's position; it appears that the language of the statute was all that was considered by the Division in reaching its conclusion. The Declaratory Statement was signed by the Director of the DBPR, Kevin Stansfield.
While Declaratory Statements of the Division do not have the force of law such that they legally bind other condominiums, for practical purposes, they certainly shed some light on how the Division's personnel interprets the law. Arbitrators at the DBPR, the folks who will consider condo election disputes, are likewise not legally bound to interpret the statute the same as has been previously concluded in Declaratory Statements, but the fact that the Director of the DBPR (effectively their "boss") has already interpreted the statute may certainly influence how they rule when the issue comes before them. Ultimately, the issue may be considered by a trial court after a party obtains an adverse result in a Division arbitration proceeding.
On Election Day 2018, Florida voters approved what had been dubbed "Amendment 6." That proposed amendment bundled three separate proposals into one ballot initiative. While the "victims' rights" issue is what many voters focused on, there was another initiative included which many voters may not have even noticed. With the adoption of the victims' rights Constitutional Amendment and the judicial mandatory retirement age amendment, an amendment to Section 21 of Article V of the Florida Constitution was approved by the voters which provides: "Judicial interpretation of statutes and rules.-In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo."
The effect of the new amendment on the director term limit issue is that courts and administrative hearing officers are expressly prohibited from considering the opinions of the DBPR when interpreting the effect of the statute's language. That means that, after the election, the DBPR's Declaratory Statement may not be introduced in court to persuade a court about what the legislature intended.
You may obtain back issues of BackerReport online by going to our website www.bapflaw.com. Click the image above.