HOA Q&A: Can someone who has power of attorney for a property sit on the board?

Editor’s note: Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables, Boca Raton and Pensacola, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q: A unit owner has given her daughter a Power of Attorney granting her authority to deal with all matters related to her unit.  The daughter has now submitted herself as a candidate for the Board of Directors arguing she will serve on behalf of her mother, the unit owner.  Our bylaws require a director be an owner or a spouse of an owner.  Is the daughter eligible to run and serve on the Board?

A. No. Your condominium association elections for your Board of Directors are primarily governed by two chapters of the Florida Statutes: the Florida Condominium Act (Chapter 718) and Florida’s Not-For Profit Corporation Act (Chapter 617) as well as Rule 61B-23.0021 of the Florida Administrative Code. The Florida Administrative Code provides that “Where the Declaration, Articles of Incorporation or Bylaws preclude non-unit owners from serving on the Association’s Board of Administration, one acting under a power of attorney from a unit owner is similarly precluded from serving on the board unless he or she is a unit owner."

You indicate that your bylaws require a director be an owner or a spouse of an owner, which is an important point.  Chapter 617 (specifically Section 617.0802), provides that directors are only required to be natural persons who are 18 years of age or older, and need not be residents of the State of Florida or members of the corporation unless the Articles of Incorporation or Bylaws so require. Section 617.0802(1) states that the Articles of Incorporation or the Bylaws may prescribe additional qualifications for directors.

Another common scenario similar to your question involves units owned by trusts.  Section 617.0802(2) provides a further qualification for grantors and beneficiaries of trusts in which the trust owns property and who wish to serve on the Board of Directors for a condominium association, in that the grantor or a beneficiary of a trust that owns a unit shall be deemed a member of the association and eligible to serve as a director of the condominium association, provided that the beneficiary occupies the unit.

It is important to consult your Association counsel if there are any questions regarding candidate eligibility as the placement of an ineligible candidate on a ballot is an error that has the potential to invalidate an election if discovered too late.

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Q. I live in an HOA and our Declaration bans Astroturf as a substitute for grass. My neighbor says a new law passed by the Legislature will allow him to do so no matter what our documents say.  Is he right?

A. It depends. He is correct that the 2023 Legislature created new statutory language which is sure to spark litigation. Here’s the specific language of Florida Statute 720.3045:

Installation, display, and storage of items — Regardless of any covenants, restrictions, bylaws, rules, or requirements of an association, and unless prohibited by general law or local ordinance, an association may not restrict parcel owners or their tenants from installing, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles.

Reading this statute alone without context would seem to indicate your neighbor is correct – BUT as is often the case – it is not that simple.

Article 1, Section 10 of the United States Constitution states explicitly that the government cannot write a law that breaks a contract – the Contracts Clause.  The covenants of any homeowner’s association are a binding contract. When a homeowner signs the contract, they agree to abide by the terms of the contract.  If the Declaration has what is known as Kaufman language, the new statute clearly applies.  Kaufman language essentially makes the contract / Declaration subject to change based on the actions of the Florida Legislature.

It may seem logical then that if this Kaufman language is not found in your documents, the new statute does not apply – again – not so fast!  There are three legal tests to determine if the language violates the U.S. Constitution’s prohibition on impairing contracts:

The procedural or substantive test: Does the change to law substantially change the contract or is it just a procedural test? In this case, it’s substantive. The contract says you can’t have Astroturf. The new law says you can.

The retroactive/remedial intent test: Is the change retroactive, covering past actions. In this case, the bill did not address this, only that enforcement started on July 1, 2023

The degree of impairment test: Frankly, almost any substantive contract is viewed as impairing the contract. In this case, one could assume the new law impaired the contract.

With all this being said, there is one final factor to consider: a 1992 case called Maison Grande which essentially held that all new laws are presumed to be valid and enforceable until the courts say otherwise.   So, until an Association chooses to be the test case to see if a Court will hold otherwise, the conservative course would be to assume the statute is valid.

As you can see it is vital to consult your Association counsel if this issue arises in your community as it raises multiple complex questions which we cannot address here today due to space limitations, including what exactly does “visible” mean in this context?

John Trebilcock, Esq., is a Partner of the Law Firm Goede, DeBoest & Cross.  Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com.  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, DeBoest & Cross, 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.

This article originally appeared on Treasure Coast Newspapers: HOA Q&A: Does power of attorney for a property allow one to be on Board?