By Michael Casanover / Published March 2020
With many condominium associations in the midst of election season, there are several questions that arise regarding the election process. For the most part, the process varies greatly between condominiums and homeowners associations.
Condominium elections that fail to follow the procedures outlined in the Condominium Act, Florida Administrative Code, and the association’s governing documents can result in an election being invalidated. Homeowner association election procedures are determined by their governing documents, and while usually very different from condominium procedures, an invalid election can result if they are not properly followed.
In both condominiums and homeowners associations, it is important to determine the date required for the election, as the election date controls deadlines for sending and receipt of notices. This information is in the association’s governing documents.
In a condominium, at least 60 days before the election, the association must mail or electronically transmit (if the owner has opted into electronic notice), the first notice of the election. The first notice must contain the name and mailing address of the association and must disclose the procedure and deadline to consent to electronic voting if the association has provided for and authorized electronic voting. If the association fails to follow the procedures for the first notice, the election must be re-noticed (if there is time to do so) or a new date must be chosen, and the process restarted. If the error is discovered after the election, a new election must be conducted.
At least 40 days before the election, eligible condominium candidates must give their notice of intent to be a candidate to the association. U.S. mail, facsimile, personal service, telegram, and email all suffice as notice. The association should implement procedures so it can verify that a candidate submitted the notice in a timely manner so they can be placed on the ballot (presuming no other bar to eligibility exists).
At least 35 days before the election, the candidates may furnish the condominium association with a candidate information sheet. The association may not edit, alter, or modify the content of the information sheet and must provide it to each owner, along with the second notice of the election. Failure to do this properly could require a new election depending on when the error is identified. Condominium elections are conducted on the date of the annual meeting, and while a quorum is not required, at least 20 percent of the eligible voters must cast ballots to have a valid election. Elections must be done by secret ballot or voting machine and may include online voting if the association has provided for and authorized it. Proxies cannot be used to elect directors, nor is the use of nominating committees permitted in condominiums.
As mentioned previously, the election procedure for homeowners associations is dictated by their governing documents. Their procedure can be as detailed as that required for condominiums or much simpler.
Our discussion on the election process continues next month.
Michael Casanover is an attorney in Becker’s Community Association Practice. He represents condominium, homeowners, and cooperative associations in preparing documents, including proxy statements, contracts, and agreements. He frequently provides support to board of directors and managers with regard to general legal advice, covenant enforcement and drafting, meeting procedure guidance, and contract review.
Mr. Casanover is a Registered Certified Public Accountant and also has litigation experience, having represented clients from pre-litigation to trial and appeal, including attending hearings, depositions, mediations, and drafting pleadings. For more information, call (954) 987-7550, email MCasanover@beckerlawyers.com, or visit beckerlawyers.com.