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MAKE SURE YOU DO YOUR HOA
ELECTION NIGHT RIGHT
By
Eric Glazer, Esq.
Published October 12, 2020
While the condo
statute outlines a very specific and rigid procedure on how HOAs
should conduct the election, the HOA Statute doesn’t say much
at all:
Elections of
directors must be conducted in accordance with the procedures
set forth in the governing documents of the association. Except
as provided in paragraph (b), all members of the association are
eligible to serve on the board of directors, and a member may
nominate himself or herself as a candidate for the board at a
meeting where the election is to be held; provided, however,
that 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.
The statute also
requires the election to take place at the annual meeting. In
order to have an annual meeting you need a quorum present in
person or by proxy. The quorum is typically 30% of all
members. Voting by proxy is allowed in an HOA, unlike in a
condominium. Nominations are also allowed from the floor, unless
candidates are allowed to be nominated in advance of the
meeting.
Our firm won an
interesting HOA election case a few years ago in arbitration
before the DBPR. I think the case makes for some good precedent
here in Florida and deals with an issue that has been plaguing
HOAs for all eternity.
As we know, each and
every year, we get complaints from people that live in HOAs who
say “I want to get involved in the affairs of my community. I
want to run for the Board. But every year, we can’t get a
quorum at the annual meeting, so there is no election and the
same Board has now rolled over for a decade.”
Well the case that
we won is called Turner v. Butler Farms and
it somewhat put a stop to that nonsense. Here’s what happened.
At Butler Farms HOA the governing documents allowed people who
want to run for the Board to submit their names to be candidates
in advance of the annual meeting. The Board sent out a notice
that there are 3 Board seats up for election this year. Four
other board spots are not up for election as those directors are
serving for a two year term. Our client, Mrs. Turner was the
only person in the HOA to submit her name in writing as a
candidate for the Board.
Of course, on the
night of the election, the HOA is unable to obtain a quorum at
their annual meeting. Therefore, the Board took the position
that there is no election and the same 3 Board members roll over
for another 2 year term. Now, Mrs. Turner was furious, because
she was saying I’m the only person who submitted my name for
three available seats ------- and the statute is clear ----- if
there are less candidates than available seats ---- NO
ELECTION IS NECESSARY. WHO CARES THAT THERE WASN’T A QUORUM AT
THE ANNUAL MEETING? I WANT MY SEAT ON THE BOARD!
The Arbitrator held
that even though this is in an HOA:
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Since the
association allowed names to be submitted in advance of the
annual meeting, and
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since Mrs.
Turner was the only person who timely submitted her name to
be a candidate and
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since there were
less candidates than available positions,
no election was
necessary ---- and it was irrelevant that there wasn’t a quorum
at the annual meeting. Mrs. Turner is now on the Board.
But here is where it
really gets interesting. As to those 4 Board members who
thought they rolled over last year for a two year term, the
arbitrator removed them from the Board as well. Those four were
on the board solely because there was no quorum at the last
election. Rollover directors must run for re-election every
single year. Sine none of those 4 directors submitted their
name to be a candidate, they were removed from the board as
well.
This is the first
time I am aware of a case in an HOA where there was no quorum
for the annual meeting, but someone who wanted to get on the
board actually got on the board. And if nothing else, it’s the
right decision because it allows more people to participate in
the affairs of the community. Here’s someone who was the only
person to step up and volunteer. Why in the world shouldn’t she
be allowed to serve?
So, the bottom line
for HOAs about to conduct your election, if your governing
documents allow people to submit their names in advance of the
annual meeting, and there are less names submitted than
available seats, it is irrelevant if you have a quorum at the
annual meeting --- no election is necessary --- and the people
who submitted their names are your new Board members.
Good luck with your
HOA election this year.
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Sachs, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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