By Lilliana M. Farinas-Sabogal, Esq. / Published September 2019
As Floridians begin to see the proverbial light at the end of the summer heat wave tunnel, the specter of election season begins to rise over community association managers and boards of directors. As most community associations hold their annual meetings, elections, and budget meetings toward the end of the calendar year, it is important to keep in mind all the details that have to be straightened out weeks, and even months, before those nail-biting, hours-long elections take place. The Florida Condominium Act requires that residential condominium associations send out their first notice of the annual meeting and elections not less than 60 days prior to the election. Once the notice is sent, the clock starts for a myriad of deadlines and paperwork that require advance planning. For-getting to check one of the items off the list could lead to having to start the whole process all over again, which can lead to increased costs and confusion for the association.
The first notice of the annual meeting and election should be a simple document. It must contain the name and correct mailing address of the association and the date of the meeting. However, if your community intends to have electronic voting, the administrative code requires the first notice to also disclose the procedure and deadline to consent to electronic voting if the board of administration has provided for and authorized an online voting system. The problem is that the statutes require a board to approve the availability of electronic voting by a board resolution that must be adopted at a meeting that was noticed at least 14 days in advance of the meeting. In plain English, in order for the first notice to state that electronic voting will be available at the annual meeting, the association must have decided that it would allow electronic voting in general at least before the first notice is sent. This means that a notice for a board meeting to decide the issue of electronic voting and the online voting system must have been sent at least two weeks before the date that the first notice of an annual meeting and election is sent out.
Also, the association needs to decide on a vendor. The statutes require that electronic voting take place pursuant to a number of different requirements. For example, the election of directors must take place in a manner in which the vote of the owner is separated from the owner’s name (to preserve the anonymity of the vote in the same way the two-envelope system protects anonymity). Not every online voting system is in compliance with Florida laws, so carefully review the requirements and ensure that whichever system you use does comply. Bottom line, if your community is considering online voting and hasn’t started this process, it should do so now.
Forty days before the meeting, the residents who wish to be candidates in the election must submit a notice of intent. The association should prepare a receipt form that can be sent or handed to the owners upon receiving the notice of intent. This will ensure that the association includes only those owners who submitted notices of intent to be candidates properly and in a timely manner and the potential candidates have evidence of such proper and timely submission.
The 40-day deadline is also the deadline for candidates to become eligible for the election. The Florida Condominium Act sets out a number of eligibility requirements. Among these is that the candidate owes no money to the association, that he or she has not been previously suspended or removed from the board by the Division, and that he or she is not a felon (unless his or her civil rights have been restored for at least five years). Before the manager or the board places a person’s name on the ballot, an eligibility check should be conducted to make sure the candidates meet the requirements in the law. The candidates must be eligible on the 40th day before the election in order to have their names placed on the ballot.
In addition, most condominiums have requirements in their declaration of condominium, bylaws, or articles of incorporations that the board of directors be composed of only “members” or (owners). In other words, before putting the names of candidates on a ballot, the association or its manager needs to verify eligibility as well as possible. Taking the time to update deeds or ownership records, ensuring that the accounting is up to date, and checking that the candidates meet those requirements is important.
If a name of a candidate who is not actually eligible is placed on a ballot that is mailed out or delivered with the second notice of annual meeting and election, the Florida Administrative Rules would require a new, revised mailing be sent out. If it is too late at that time to deliver another mailing 14 days before the meeting, then the association should reschedule the meeting.
Thirty-five days before the election is the deadline for candidates to submit their information sheets with any information that they may want to have mailed out to the members with the ballots. Failure to add any document submitted on time will also require a new mailing to be sent out. If it is too late at that time to send another mailing 14 days before the meeting, then the association should reschedule the meeting.
Many condominium documents have extended budget meeting notice requirements. Although the law requires the budget meeting notice be sent out a minimum of 14 days before the meeting, many condominiums (especially older condominiums) require budget meeting notices be sent out not less than 30 days before the meeting. This means that proposed budgets and any voting documents related to budgets (like reserves waivers) must be sent out at that time as well. In fact, many of these older condominium documents also require 30 days’ notice for any member meeting. If your condominium plans on voting on the budget at the annual meeting, and you planned on combining budget meeting notices with your election notices, your new second meeting notice deadline is now 30 days.
In short, elections require quite a bit of preparation well in advance of the actual date. Taking the time now to schedule the deadlines and all the things you have to get done in order to meet them will make things far less stressful.
Lilliana Farinas-Sabogal is a shareholder in Becker’s Community Association and Business Litigation practice groups. In addition to her experience in assisting community associations in their day-to-day business, management, and the operational aspects of governing their communities, she assists boards of directors, unit owners, and community association managers in analyzing and resolving their often complex contractual and transactional disputes and issues. Ms. Farinas-Sabogal is also one of only 190 attorneys statewide who is a Board-Certified Specialist in Condominium and Planned Development Law. For more information, email LFarinas@beckerlawyers.com or call (305) 262-4433.