When electing board members to serve on behalf of your community, you expect them to be on their best behavior and to think of the needs of the building and the people who live there when making their decisions. Regardless of the type of community they serve, board members have a responsibility to govern and make decisions on behalf of that community. This is often referred to as the board's “fiduciary duty.”
Decisions made on behalf of a board's fellow residents must be made in good faith, with the best interests of the community firmly in mind, and violating this duty can lead to legal consequences for boards and individual board members who stray. Unfortunately, some people do stray—and this is why the legal community is steadfast about clearly defining what is expected and required in a board's fiduciary duty.
A Fine Line
Condo, co-op, and HOA board members in the Sunshine State must walk a fine line when navigating the breadth and limitations of fiduciary duty, and they must be extremely knowledgeable regarding their responsibilities. But the burden of fiduciary duty does not fall solely on the board; owners and residents must also be aware of their rights, so that they will know what to do should a board member make a decision that perhaps is not in the best interests of the entire community..
Under Florida state law, a fiduciary relationship exists where there is special confidence in one party, which is then bound to act in good faith with regard to the interest of another party, explains Shari Wald Garrett, an attorney with Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A., headquartered in Coral Gables. “A board's duty includes, but is not limited to, fair dealing and a general prudence in how one obtains information and makes decisions on behalf of the condominium association,” she says.
Therefore, when facing a decision, the board members should always make that which is deemed in the best interest of all of its members—and of all of its residents. More specifically, Florida Statute Section 718.111, which governs condominiums, provides in pertinent part that “the officers and directors of the association have a fiduciary relationship to the unit owners,” and states further that “an officer, director or manager may not solicit, offer to accept, or accept anything or service of value for which consideration has not been provided for his or her own benefit or that of his or her immediate family, from any person providing or proposing to provide goods or services to the association.”