The annual election is probably the biggest event in the administrative life of the condominium, homeowners or cooperative community. For board members and residents alike, it's their most important performance.
The board members elected that night will be responsible for overseeing the financial stability of the association and the proper maintenance of the property. The resolutions and rules they pass and the attitude with which they serve their fellow residents greatly influence the tenor and feel of life within the community.
Recognizing the significance of board elections and their potential for causing confusion and contentiousness, the Florida Legislature has laid out a comprehensive, detailed protocol for elections under Florida statute.
The Ruling Class
The board of directors of a condominium or cooperative association must be elected by the process prescribed in Chapter 718 or 719, Florida Statutes, and Rule 61B-23.0021 or 61B-75.005 of the Florida Administrative Code, unless your association has 10 or fewer units and has adopted an alternate election procedure in its bylaws.
According to the Department of Business & Professional Regulation’s Election Brochure for Condominium and Cooperative Associations, vacancies on the board can only be filled by electing a new member and the election must be held on the same day and in the same place as the association’s annual meeting. The DBPR recommends that associations refer to the language found in the Condominium and Cooperative Acts, and the Florida Administrative Code, as well as any requirements in the association's documents prior to beginning the election process.
Annual Election Required
Associations must hold a general meeting which includes an election every year within a timeframe set by statute and within their governing documents. HB1195, which passed in 2011, provides some clarification about vacancies on the board.
According to the Richards Law Group, PLLC, based in Ormond Beach, Florida Statute 718.112(2)(d) provides that if at an annual meeting of the association, if a board member’s term would expire, but there are no candidates, the board member’s term will not expire. If there are candidates, and if there are candidates equal to or less than the number of board positions expiring at the meeting, all candidates shall become members of the board, upon the close of the meeting. If there are any board positions that are not filled, an affirmative vote by a majority of the board (even if there is just one person on the board and no quorum) shall be used to fill the openings on the board.
A board candidate must be eligible to serve on the board when the candidate submits the required notice of intent to serve 40 days before the election for the candidate’s name to be on the ballot.
According to Attorney Eric Glazer of Glazer & Associates, P.A., with offices in Fort Lauderdale, Orlando and Naples, sixty (60) days before the annual meeting, the first notice of election must be sent to unit owners announcing the date, time and place of the election meeting. Forty (40) days before the meeting is the cut-off for any candidate to submit their intention to run for a board position; 35 days is the cut-off for submitting a candidate information sheet; 34 to 14 days before the meeting requires submission of a second notice sent to unit owners with candidate information sheets, the ballot, inner and outer envelopes. The ballots will list the names of the candidates in alphabetical order.
No Proxies or Floor Nominees
Florida law does not allow proxy voting and nominating committees are prohibited by statute. Search committees may be used to encourage individuals to run for the board; however, they have no authority to nominate anyone to run. Candidates seeking office must file a notice of intent.
New HOA rules regarding elections took effect in July 2013, Glazer notes. In an HOA, as of July 1st, if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting. An election is not required unless more candidates are nominated than vacancies exist.
Proxies may not be used during the annual meeting elections, and individuals are elected to the board by written ballot or voting machine. “Ballots, envelopes and other items used in the election process must be maintained among the association’s official records for at least one year from the date of the election to which these items relate,” states the DBPR elections guide.
Your absence from your unit cannot be used as an excuse for not voting. “In Florida's condos and co-ops, you are not permitted to use proxies in the election of your board,” affirms Kenneth Direktor, a shareholder attorney in the West Palm Beach-based law firm of Becker & Poliakoff. “You are required to use the dual envelope system and mail in your vote.” By definition, a proxy is a designation allowing someone else of your choosing to vote in the election.
Direktor, who chairs the firm’s Community Association Practice Group, explains how the dual-envelope system works in the Sunshine State. “You are not required to put your name on the ballot. They are supposed to be put in an inner unmarked envelope, which is then placed in an outer envelope on which you are required to have your unit number and signature. This allows us to verify that you're casting your own vote but at the same time allow you to cast your vote secretly,” he says.
What About in an HOA?
Unlike condominium associations, where the election procedures are almost entirely regulated by the statute in the administrative code, Direktor says that in homeowners associations, the election procedure is usually governed by the community’s own bylaws.
In some homeowners associations, therefore, limited proxies can still be used in connection with the vote to elect directors, he says.
“In many homeowners’ associations you still are required to allow people to nominate themselves from the floor at the annual meeting. However, based upon recent amendments to the HOA statute, there is an increasing number of homeowners’ associations amending their documents to make their election procedure more like condominiums so that they give notice to everyone well ahead of time so that those who want to put their name in ahead of time as a candidate have an opportunity to do so,” says Direktor.
Thus, you can “make sure that there’s a cut off for nominations so that they know well in advance of the annual meeting whether or not they even have enough candidates to have an election. They also require the use of ballots just like they do in condominium associations so that everyone who votes for the board has to cast his or her own vote. There has been, I suspect it will continue, to be a continued migration in homeowners associations toward the condominium style of election,” Direktor says.
Felons Not Welcome
New laws went into effect prohibiting delinquent owners and those with a criminal background from participating in board business, including elections. Florida Statute 720.306(9) now states that any owner who is more than 90 days delinquent in making payment of any assessment or fine, or has been convicted of a felony in Florida (with some exceptions) is not eligible to sit on the board.
Glazer notes that ineligible candidates include any person, who has been suspended or removed by the Department of Business and Professional Regulation; a person who is more than 90 days delinquent in the payment of any fee, fine or special or regular assessments, and any person who has been convicted of any felony in this state or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction that would be considered a felony if committed within this state, unless such felon's civil rights has been restored for no less than five years.
Who, What, When, Where & Why
Association bylaws set forth the number of people who sit on the board, who may serve and for how long, according to the DBPR guide. “In condominiums, the terms of all members shall expire at the annual meeting, and such board members may stand for re-election unless otherwise permitted by the bylaws. In the event that the bylaws permit staggered terms of no more than two years, and upon approval of the majority of the total voting interests, the association board members may serve staggered 2-year terms. Timeshare condominiums are exempt from this provision,” the guide says.
Also in condominiums of more than 10 units, co-owners may not serve together on the same board unless they own more than one unit or there are not enough people eligible to serve.
A quorum is not required to hold an election; however, at least 20 percent of the eligible voters must cast ballots in order for the election to be valid.
Counting the Votes and Certification
The ballot must list all eligible candidates in alphabetical order by last name and cannot say which ones are incumbents. No write-in candidates are permitted.
In lieu of the dual ballot system cited earlier, elections in Florida may also be conducted by voting machine. An association may also use alternate methods different from those in the DBPR guide—as long as a majority of the total voting interests of the community approve.
Once the board members are elected, Florida law requires that after 90 days, the fledgling or veteran board member must certify in writing to the secretary “that he or she has read and understands the governing documents, and will faithfully discharge his or her fiduciary responsibility.” A board member can also submit satisfactory completion of the education curriculum administered by a division-approved educational provider.
What about contesting the election or recalling the membership? The recall procedure in Florida is very complicated and difficult to accomplish although a written recall process is offered by the division to unit owners under Section 718.112(2)(j) of the Florida Statutes. As of July 1, 2013, in both condos and HOAs, a board member who is recalled has the right to challenge that decision by filing an arbitration petition, Glazer states. Additionally, a recall petition may no longer be filed within the first 60 days following an election and within 60 days of an upcoming election. Finally, any arbitration challenge to the election process must be filed within the first sixty (60) days following the election or the election results stand. For more information on the recall process, you can visit www.myfloridalicense.com/dbpr/lsc/statutes.html.
The best solution might be to wait out the board member or board members’ terms and urge other owners to help you vote them out. Or better yet, run for the board yourself.
Debra A. Estock is managing editor of The South Florida Cooperator. Freelance writer Steve Cutler contributed to this article.
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