IS A TRUSTEE OR BENEFICIARY OF A TRUST ELIGIBLE TO RUN AND/OR SERVE ON AN ASSOCIATION’S BOARD OF DIRECTORS?

One of the questions we receive over and over from our clients is the question “is a trustee or trust beneficiary eligible to run for and/or serve as an association
board member?”

While the question is not directly addressed in either Chapter 718, Florida Statutes (the “Condominium Act”, Chapter 719, Florida Statutes (the “Cooperative Act”)
or Chapter 720, Florida Statutes (the “Homeowners Association Act”), Chapters 607 and 617, Florida Statutes (the “Florida Business Corporation Act” and the “Florida
Not for Profit Corporation Act”, respectively) do provide some guidance.

Section 607.0802(2), Florida Statutes, provides as follows:

In the event that the eligibility to serve as a member of the board of directors of a
condominium association, cooperative association, homeowners’ association, or
mobile home owners’ association is restricted to membership in such association and membership is appurtenant to ownership of a unit, parcel, or mobile home, a grantor of a trust described in s. 733.707(3), or a qualified beneficiary as defined in s. 736.0103(14) of a trust which owns a unit, parcel, or mobile home shall be deemed a member of the association and eligible to serve as a director of the condominium association, cooperative association, homeowners’ association, or mobile home owners’ association, provided that said beneficiary occupies the unit, parcel, or mobile home. (Emphasis added.)

Similarly, Section 617.0802(2), Florida Statutes, provides:

In the event that the eligibility to serve as a member of the board of directors of a
condominium association, cooperative association, homeowners’ association, or
mobile home owners’ association is restricted to membership in such association and
membership is appurtenant to ownership of a unit, parcel, or mobile home, a grantor of a trust described in s. 733.707(3), or a beneficiary as defined in former s. 737.303(4)(b) of a trust which owns a unit, parcel, or mobile home shall be deemed a member of the association and eligible to serve as a director of the condominium association, cooperative association, homeowners’ association, or mobile home owners’ association, provided that said beneficiary occupies the unit, parcel, or mobile home. (Emphasis added.)

The above sections of the Florida Business Corporation Act and the Florida Not For Profit Corporation Act provide that the grantor of a Trust, or the beneficiary of a trust that occupies the unit is eligible to serve on an association’s board of directors.

Additionally, the Division has ruled in several cases regarding trustees serving on a board of directors. A trustee of the trust that currently owns the unit is eligible to serve on the Association’s board of directors. See McWilliam v. Maya Marca Condo. Ass’n, Inc., Arb. Case No. 2003-09-4468, Amended Summary Final Order (April 12, 2004)(Where an association’s by-laws provide that a board member must be the owner of a unit, “have an interest therein” or be an officer or designated agent of an owner corporation, it is reasonable to interpret this language to apply to current, legal interests, such as trustees or life estate holders.); see also, Spevack v. Plaza Del Prado Condo. Ass’n, Inc., Arb. Case No. 2004-00-2794, Summary Final Order (March 30, 2004) (Where the documents required that board members be unit owners, the arbitrator held that a board member who was a co-trustee with a life estate in a unit was eligible to sit on the board.); see also Mark Stern v. Playa Del Mar Association, Inc., Arb. Case No. 2007-06-6957, Order (May 5, 2008)(As trustee of the trust that currently owns the unit, Petitioner is eligible to serve on the Association’s board of directors.)

Is a trustee or trust beneficiary eligible to run for and/or serve as an association board member? As you can see from above, the answer is yes.

Written by Howard J. Perl Esq. for Florida Condo HOA Law Blog