Each and every year, without fail, the Department of Business and Professional Regulation is deluged with arbitration petitions filed against associations, alleging that the association failed to properly conduct its elections.  Knowing some basic law can go a long way toward finding your association’s election under a legal attack.  Here are some of the more commonly litigated issues:

1.      Placing the wrong number of people on the Board of Directors: (Condominium Associations Only)  Often times the governing documents do not provide for an exact number of Directors for your Board.  Instead, the bylaws allow for a range of directors like no less than three and no more than nine.  Florida arbitration cases have held that where the documents provide for a range of directors, the statute automatically sets the number at five.

2.      Staggered Terms:  (Condominiums Only)  There has been lots of confusion over the years regarding staggered terms.  To make a long story short, staggered terms are now allowed, if they are provided for in your governing documents and the term is not in excess of two years.

3.        Candidate Information Sheets: (Condominiums Only)  In a condo election, each candidate is allowed to provide the association with:  a copy of an information sheet which may describe the candidate's background, education, and qualifications as well as other factors deemed relevant by the candidate. The information contained therein shall not exceed one side of the sheet which shall be no larger than 8 1/2 inches by 11 inches. Any candidate desiring the association to mail or personally deliver copies of an information sheet to the eligible voters must furnish the information sheet to the association not less than 35 days before the election. If two or more candidates consent in writing, the association may consolidate into a single side of a page the candidate information sheets submitted by those candidates. The failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include the information within the time required by this rule. If an amended second notice cannot be timely mailed, transmitted or delivered, the association must re-notice and reschedule the election. If the election has already been conducted, the association shall conduct a new election. No association shall edit, alter, or otherwise modify the content of the information sheet. The original copy provided by the candidate shall become part of the official records of the association. 

Note that the law allows the candidate information sheet to include “factors deemed relevant by the candidate.”  That means that the information sheet may be critical of the current administration.

4.      Quorum: In a condominium, it is irrelevant if there is a quorum at the annual meeting.  As long as 20% of the eligible voters participate in the election, the election counts.  In an HOA – a quorum is needed to have an annual meeting.  However, as we learned from a recent arbitration case this firm won, if an HOA asks owners to submit their names for candidacy in advance of the annual meeting, no election and no quorum is needed if there are less persons who submit their names than there are open positions.

    When Can the Last Vote Be Cast? In a condominium, an owner can cast a vote up until the first envelope is opened.  The association must also have ballots and envelopes on hand.

You will note that I haven’t said much about HOA election procedure.  I’ll leave it up to Jan to tell you why.

I wish all of you a smooth and easy annual meeting this year.  Hope these tips help.