Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: This question relates to your recent article concerning condominium term limits. It seems odd — and a bit self-serving — that most community association legal advisers are following the non-binding Glanz arbitration decision and not independently interpreting the term limit statute. Statutory interpretation looks to discernible legislative intent and would infer broad application to older, as well as newer, condominium associations, regardless of Kaufman language.
It seems obvious that the legislature did not intend to exclude the more than 90% of condo associations that pre-dated the term limit statute by conditioning its application to those associations with Kaufman Language. I expect that most attorneys active in community association law represent the association and have a vested interest in supporting the continuation in office of long-standing directors. The absence of a substantial financial incentive for new board candidates makes a court challenge unlikely so we seem stuck with Glanz unless DBPR issues a contrary statement.
Independent attorneys should be willing to determine legislative intent and advise that term limits now apply. Please comment further on this issue. Signed, G.S.
Dear G.S.,
For our readers, your question relates to the term limit provisions of the Condominium Act, and the fact that a Division arbitrator, in an arbitration case called Glanz, came to the conclusion that the law would not apply to any condominium that predated the law and did not have so-called “Kaufman Language” in its Declaration—a statement that the condominium would be governed by the statute as amended from time to time.
You are arguing that an “independent” attorney should advise their client as to what you see as obvious — that the legislature intended the statute to apply regardless of Kaufman language, and to ignore the Glanz decision.
I disagree with you on several levels.
First, no attorney can conclusively determine legislative intent. That’s something that courts decide. In my opinion a responsible attorney would never declare with certainty an issue that hadn’t yet been decided by at least an appellate court — and even that would be couched a bit given the possibility that the appellate courts could disagree, leading to a future supreme court decision on the issue.
Second, the question of whether a statute applies retroactively is a lot more complicated than simply looking at legislative intent.
Courts must first determine whether a statute is procedural in nature (rather than substantive), in which event it would apply regardless of Kaufman Language; and then separately, and if the statute is found to be substantive, whether the legislative intent and nature of the law mean that it should apply retroactively as a matter of policy. The simple fact that the legislature implies a retroactive intent would not settle that question.
Third, as a community association attorney, I am not an elected representative of my clients. I am an advisor that helps boards make business decisions based on my analysis of legal issues. It’s the board members who are elected to make those decisions, and that includes risk/reward analysis regarding how to handle unsettled legal questions.
Of course, if a client asked me about term limits, I would explain how the law works, and the existing questions regarding whether it applies to every condominium. I’d also point out the arbitration decision and my thoughts regarding the analysis, and whether I think other arbitrators are going to follow suit. But how could I simply tell them that the arbitrator is wrong, and they should follow the statute? What justification would I have to give that legal opinion, other than my own personal analysis and disagreement with the outcome of the case? That’s not my role as a lawyer. It’s not my job to tell my clients that the only existing legal guidance we have is wrong, and my personal analysis is right, and so that’s what they should follow.
By your question, it frankly sounds more like you disagree with Glanz (I tend to as well), and you’re frustrated at the possible impact of the decision, and so you’re lashing out at community association attorneys and arguing that if they were honest and not in the pocket of their boards they would agree with you and advise their boards that term limits apply no matter what.
I, at least, do not lawyer that way. I lay out the arguments on both sides of an undecided issue, analyze the relative strengths and weaknesses of those arguments and, when relevant, how I would expect that issue to go in an arbitration or trial; and then I let the elected representatives make the decision of how to proceed — because that’s their job, not mine.
And incidentally, I don’t worry a lot about how my clients’ elections go, and who is on their boards — I have no control over that issue, and I have plenty of clients that have continued to work with me despite multiple board changeovers.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Are condo board members now term limited by Florida law?
Reporting by Ryan Poliakoff, Special to the Palm Beach Post / Palm Beach Post
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