Elections: Electronic Condominium Voting in the 21st Century

By Michael J. Gelfand, Esq.

No one wants a “Dufus” elected to the board of directors. However, with the lack of participation in elections, occasionally the “Dufus” rallies his or her friends to vote while the remainder of the community fails to participate in the election. In another scenario, directors are elected and are “forced” to remain on the board of directors for years because the association cannot obtain a quorum for an election.

Annual elections are an important aspect of community association governance because an election is the primary method for association members to become involved in the decision making process. However, whether because of scheduling or general apathy, many association members fail to participate.

New technology is being proclaimed as the hero to solve the apathy problem. It is thought by some that an association’s ability to authorize electronic voting may increase member participation in elections. Last year, Florida’s Legislature responded to this thought by authorizing Florida condominium associations to conduct elections through Internet-based online voting systems. As with any new law, questions quickly arose regarding the implementation. Homeowners associations are carefully watching this process because it is likely that what works for condominium associations will be applied in the future to homeowners associations.

The Department of Business and Professional Regulation’s Division of Florida Condo-miniums, Timeshares, and Mobile Homes published a proposed rule change to Florida Administrative Code Rule 61B-12.0021, entitled “Regular Elections; Vacancies Caused by Expiration of Term, Resignations, Death; Election Monitors,” and Rule 61B-23.00211 entitled “Electronic Voting.” This firm provided the Division with suggestions to improve the proposal, many of which were adopted.

As revised, Proposed Rule 61B-23.0021 provides that if electronic voting is authorized for condominium associations, then the first notice of election must include: (1) the procedure to consent to electronic voting; and (2) the deadline to consent to electronic voting.

Proposed Rule 61B-23.00211 is a new addition to the administrative rules and provides guidance to Florida condominium associations with regard to the definition of an election official and what a directors’ resolution authorizing electronic voting should include. A resolution to authorize electronic voting must provide that upon electronic voting authorization, all unit owners must be provided notice of the option to vote electronically, and the notice of meeting must indicate that unit owners may vote electronically. The rule also specifies that a written consent to electronic voting may be provided by e-mail without the e-mail address being considered an official record.

The term “election officials” is defined as the division, ombudsman, and election monitors appointed by the ombudsman. With regard to the electronic voting systems, the system must provide:

• The association with an official record that includes the votes cast, and the date and time the vote was received; and
• The unit owner a receipt that includes the vote cast, the date and time of submission, and the user identification.

For elections, votes cannot be accessible to the condominium association before the scheduled election.

Rule 61B-23.0021 also addresses ineligible candidates. A new second notice of meeting must be provided to owners if a candidate that is ineligible by the deadline to submit a notice of intent is included on the ballot. The amended second notice must be provided within the required time period for a second notice. The amended notice must include a ballot with only eligible voters and explain why the amended notice is required. This process adds the potential for great confusion, and may push associations to confirm candidate qualifications.

An association’s ability to conduct elections through electronic voting brings condominium association elections into the 21st century and may increase member participation. However, just as with paper ballot elections, it is important to remember that the notice and election requirements must be followed to prevent the invalidation of an election. In any instance, advance planning is likely to be the key!

Noise: Association Authority To Challenge A Nuisance

What happens if an activity causes so much noise that it disturbs your enjoyment of your home? Can an association do anything to stop the activity if no law is broken?

The issue of whether a Florida association can sue to stop nuisance noise was recently addressed by a Florida appellate court, which ruled that even if the activity was “legal,” the activity may constitute a nuisance and be subject to court authority. In The Lake Hamilton Lakeshore Owners Association, Inc. v. Neidlinger, 41 Fla. L. Weekly D 27 (Fla. 2nd DCA, December 30, 2015) the facts indicated that “Captain Fred” operated two commercial airboat tours on Lake Hamilton for up to ten hours per day every day for several months. Polk County Ordinance 96-14 provided that airboats could not be operated between 10:00 p.m. and 7:00 a.m. Sunday through Thursday and between noon and 6:00 a.m. Friday and Saturday.

An association comprising owners who lived on or near Lake Hamilton sued the owner of Captain Fred’s Airboat Nature Tours alleging that the airboat constituted a nuisance because the noise levels of the boats created “an unreasonable loss of enjoyment” for many residents. The trial court granted Captain Fred’s motion to dismiss the association’s complaint, ruling that because state law permitted the activity, the activity could not constitute a nuisance.

The owners appealed and were vindicated at least in part. The appellate court disagreed with the trial court. While the appellate court noted that the ordinance permitted airboats to be operated during specified hours, that does not allow unfettered conduct and noise. An activity can constitute a nuisance even if the activity is authorized by statute, regulation, or ordinance.

The court looked at the activity’s impact. Based upon the particular facts and circumstances, a Florida court has jurisdiction to act when a use affects the “public and private rights of others.”

The moral of the story is that just because an activity or conduct is permitted by a statute or ordinance, that does not mean that neighbors have to put up with it. The courts are open to help ensure peaceful and proper property uses in a calm and proper forum. The conduct or activity may constitute a nuisance!

Florida Legislative Update: 2016

Yes, the Legislature has convened, much earlier this year because of the redistricting issues, but the early start does not mean that the process is clearer than in years past. Many subjects have been discussed. Nevertheless, the observers and pundits seem to be in agreement that it is too early to anticipate what will be approved and sent to the Governor to be signed into law.

We are monitoring bills as they are introduced, and if you have questions, check out www.leg.state.fl.us or contact your association counsel. 

Michael J. Gelfand, Esq.

Senior Partner of Gelfand & ARPE, P.A.

Michael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and how to effectively achieve those goals. Gelfand is a Florida Bar Board Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at michael@flcaj.com or (561) 655-6224.