Condo Q&A: Can an Owner’s POA Son Be on the Board?

Also: A non-gated community installed security cameras at entrances. Now board members monitor who comes and goes on their cellphones. Is that legal?

STUART, Fla. – Question: A unit owner in our condominium has submitted a power of attorney (POA) naming her son as her power of attorney for all matters involving the condominium. The son has now submitted his name as a candidate for the board of directors on behalf of his mother, the owner of the unit. The bylaws require directors to be an owner or the spouse of an owner. Is the son eligible to run and, if elected, serve on the board? – K.Z., Delray Beach

Answer: No, he is not eligible. The Florida Administrative Code 61B-23.001(3), which is applicable to condominiums, 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.”

If your bylaws require that directors must be owners or spouses of owners, then in your case, the son of the owner would not be eligible to run or serve on the board using a power of attorney.

Also, it is important to review the power of attorney when it is submitted. Unless it has language specifically allowing the person named as the POA to deal with matters involving the unit or parcel it may not be sufficient to allow the person to do so. You should consult your association’s legal counsel to determine if the POA is legally sufficient.

This answer would, in my opinion, also apply to cooperative and homeowner associations.

Question: Our community is non-gated. The board recently installed cameras around the community with a screen monitor in the office. The purchase was voted by the seven-member board without approval of the homeowners. Three officers in private also decided they would connect their personal cell phones to the monitor.

It is like “big brother” is able to watch the “coming and goings” of the community. Are there any legal issues with selected board members having this access out of the office of the complex? Your thoughts will be most appreciated. – S.F., Boca Raton

Answer: If your community is a condominium or a cooperative, the installation of cameras would be considered a material alteration of the common elements that would have to be approved by a vote of the owners unless your declaration provides otherwise. If, however, the board could document a security need for the cameras then likely no vote of the owners would be required.

If your community is an HOA governed by Chapter 720, Florida Statutes, no material alteration vote of the owners would be required, and the board could approve the installation. As for who has access to the live feed from the cameras that would also be a board decision.

While it may seem a little creepy for individual directors to have the feed on their phones, there is no expectation of privacy on the common areas, so there is no invasion of privacy issues that I see.

Richard D. DeBoest, Esq., is a partner of the law firm Goede, DeBoest & Cross. 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.

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