By Michael Casanover / Published April 2020
Editor’s Note: This is the second article in a two-part series on the election process. The first part can be read at www.fcapgroup.com/flcaj/flcaj-articles/election-process-part-one/.
A vacancy requires two or more eligible candidates. If not enough eligible candidates give notice of their intent to run, then an election is not required. Since write-in candidates and nominations from the floor are not accepted, the association will know well in advance if the scheduled election is necessary. The association should review its governing documents to determine if board members must be unit owners. Further, persons delinquent on any monetary obligation due to the association are not eligible to be a candidate for board membership. The date to measure delinquency is the last date notices of intent to be a candidate are due. Also, anyone convicted of a felony is not eligible for board membership unless such felon’s civil rights have been restored for at least five years as of the date such person seeks election to the board. If an election is not required, then the association holds a membership meeting, usually the annual meeting, to announce the names of the new board members and whether any board seats are unfilled.
Between 14 days and 34 days before the election, the association must send a second notice of election to all unit owners. Check your governing documents for this notice as they may require a lengthier notice. The second notice should include the candidate information sheets, the ballot, the outer envelope, and a smaller inner envelope in which to place the ballot. The outer envelope must include the name of the voter, the unit for which the vote is cast, and a signature space for the voter. After the voter completes the ballot, the voter must place the ballot inside the smaller inner envelope, seal the envelope, place the sealed inner envelope in the outer envelope, and seal the outer envelope. The voter then signs the outer envelope and returns it to the association. Upon receipt, the ballot may not be rescinded or changed.
The association may verify the outer envelope information in advance of the meeting. To verify before the meeting, the association must appoint an impartial committee at a duly noticed board meeting. The impartial committee may not contain current board members, officers, candidates, or the spouses of the preceding. The committee must meet the day of the election but before the meeting to check the signature and unit identification on the outer envelope against a list of qualified voters. The voter should then be checked off a list as having voted. If a voting certificate is required, then the committee should ensure that the owner has placed a voting certificate on file with the association and that the voting certificate holder has cast the ballot. Unsigned outer envelopes, units that require a voting certificate holder but have not submitted a voting certificate to the association, units where the voting certificate holder did not vote, and units submitting duplicate outer envelopes shall be disregarded. The committee should not open outer envelopes until the actual election meeting.
On the day of the election, the association should transport the envelopes containing the ballots to the location of the election. Also, the association should have blank ballots available for the eligible voters who have not already voted. Ballots distributed at the meeting shall be placed in the same inner and outer envelope system used by persons returning ballots before the election. If an impartial committee has not been previously appointed, the association should appoint such a committee at a board meeting before the annual meeting. The impartial committee will then validate the outer envelopes in the same manner listed above. Once the outer envelope validation is complete, the valid outer envelopes may be opened, which should be done in the presence of the owners. Once the first outer envelope is opened or electronic votes are accessed, the polls are closed, and no additional ballots may be accepted. The inner envelopes must be opened and counted in the presence of the unit owners. Any inner envelopes containing more than one inner ballot envelope must be disregarded. If a ballot indicates a vote for more candidates than vacancies, the vote is disregarded. A plurality of ballots decides the election.
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 boards 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.