|
HOA
ELECTION LAWS: NOTHING BUT CONFUSION?
By
Jan Bergemann
Published
October 26, 2012
Reading
the provisions created by the
Florida
legislature in FS
720.306, supposedly regulating elections in
homeowners’ associations, will confuse everybody, even
specialized association attorneys. The wording in these
provisions is a lesson in “How
to confuse everybody and allow anything board and/or manager
want to do.” Even cheating is obviously allowed,
considering some of the arbitration rulings we have seen.
Imagine
an election being certified where a multitude of falsified
ballots was proven – and even punishing the owners who filed a
complaint about election fraud by forcing them to pay the legal
fees?
In
a recent case owners proved that minimum six of the ballots
counted were fraudulent, not signed by the owners of the units.
These owners even filed affidavits that they didn’t vote at
all in this election. The arbitrator took the easy way out: Even
if these six ballots were fraudulent, it was not enough to
change the outcome of the election. Instead of investigating
further – or demanding a new election to be held – the
arbitrator found in favor of the association that allowed this
fraud to happen – and awarded them the legal fees. Fair elections? NOT in HOAs!
Florida
is famous for botching elections, not only in homeowners’
associations. Shouldn’t that bad reputation cause legislators
to create laws – minimum in homeowners’ associations –
that are easy to follow and will close a lot of loopholes used
to cheat with elections?
It really isn’t difficult, considering that the Florida Condo
Act (FS 718) contains the perfect wording and there is extensive
case law that people can fall back on in case of doubt? But
instead of using proven language to create laws that would
establish fair election laws,
Florida
legislators listened to some attorneys that were obviously
lobbying for the Attorney Full Employment Act.
There
is a long list of complaints about the confusing election
provisions. Nearly
every day I get some sort of complaint about election issues –
from boards unwilling to hold elections to cancelled elections
due to lack of quorum. There are no enforcement, no real rules
and no clear language when it comes to annual elections in HOAs.
Funny
enough, legislators hearing complaints about abuses in
homeowners’ associations tell these complaining owners to
“vote these bums out” or just recall them. That’s easier
said than done. Since the laws allow just about anything, it’s
up to the board and/or manager to make the rules. From
nominating committees that only nominate the sitting board
members to “you have to be present at the meeting in order to
vote” – we have heard it all. And since the statutes require
a quorum of 30% of the voting membership – very few bylaws
allow a lower percentage – there are many associations that
didn’t have elections in the last ten years. And even if a
quorum may be present at the meeting, some boards quickly claim
that no quorum is present and send everybody home, without even
making an attempt to call another meeting with elections.
We
always laugh about elections in Banana Republics, even send
former
U. S.
presidents to supervise elections in foreign countries. Believe
me, the elections in these Banana Republics are fairer than the
ones in
Florida
’s homeowners’ associations. And these homeowners can’t
even ask for a former president – or even a simple election
monitor to conduct fair elections. Why are our politicians so
concerned about fair elections in foreign countries if we
can’t even have fair elections in our homeowners’
associations?
And
that is exactly the reason why the existing election provisions
in FS 720 should be replaced by the election provisions from the
Condo Act [FS
718.112(2)(d)].
Is
that too much to ask for? FAIR
ELECTIONS?
|
