Filling Vacant Seats on the Board of Directors

August 30th, 2019

Posted in Business & Corporate Law

The typical board of directors for a condominium or homeowner’s association consists either 3, 5, or 7 directors, depending on the governing documents and participation within the community.  The election of directors by the membership generally occurs each year at the annual meeting.   Some associations have trouble finding enough candidates to fill the open director positions at the annual elections, but what happens when a director unexpectedly resigns, passes away or is disqualified before the end of his or her term?  How does the association fill that vacant director’s seat?

Section 617.0809, Florida Statutes, which governs not for profit corporations such as condominium and homeowners associations, provides, “any vacancy occurring on the board of directors may be filled by the affirmative vote of the majority of the remaining directors, even though the remaining directors constitute less than a quorum . . .”  In the event there are no remaining directors, the statute provides that the director’s seat can be filled “by the members, or on the application of any person, by the circuit court . . .”

For condominiums, Section 718.112(2)(d)(9), Florida Statutes, states, “unless otherwise provided in the bylaws, any vacancy occurring on the board . . . may be filled by the affirmative vote of the remaining directors . . .” and also provides that the “board may hold an election to fill the vacancy . . .” (emphasis added).  Accordingly, in addition to the relevant Florida Statutes, it is critical that the association bylaws be reviewed whenever a vacancy occurs.

The term of any newly appointed or elected director pursuant to the above provisions, generally expires at the next annual meeting where directors are elected, subject to the provisions of the association’s bylaws.

In the event your community experiences an unexpected vacancy on the board of directors, there is likely a straightforward solution to quickly and easily fill the vacant seat.  However, there are subtleties and distinctions that should be considered and discussed with the association’s counsel.

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