Community Association Elections, Do’s and Don’ts

Easily the most contentious procedure and most likely to be a subject of legal challenge is the manner in which an election of available Board of Director’s seats is held and conducted. Election disputes are filed as arbitrations with Florida’s Division of Condominium. How your association conducts its election is a function of both Florida’s Condominium Act or Florida’s Homeowners Association Act, as well as the particular provisions of the governing documents of your community. Common electoral procedural mistakes include i) failing to follow the strict time periods for a first notice of annual meeting, second notice of annual meeting, and period for candidates to submit their notice of intent to be a candidate form; ii) usage of nominating committee and procedure for nominations from the floor; iii) the lack of a verification process to ensure an eligible person completed the ballot/limited proxy for a particular home/unit; iv) usage of voting certificates being on file with the community; vi) selection of a counting committee; vii) and members’ ability to witness the tabulation of votes during the annual meeting. Each of these issues is an involved topic by itself. Any deviation from the requisite procedures could cause the invalidation of an election or a change in the tabulation of votes for a candidate(s). Members have sixty (60) days from the annual meeting to file an arbitration election challenge with the Division of Condominium which could be extremely disruptive to the governance of the community. COVID-19 has certainly further complicated the goings on during election night. The collection of votes in advance whether it be by the two (2) ballot system statutorily required for Condominium Associations or limited proxies dropped off or mailed is more common for homeowners associations. The membership’s inability to witness the process due to COVID-19 restrictions heightens member’s skepticism that the election was fair and proper. For starters, the Board of Directors needs to formally adopt creative but statutorily compliant procedures reflected in meeting minutes. These procedures must be unambiguously set forth in the notices to the community. Precise execution and oversight by counsel ready to head off errors is necessary to avoid the quagmire of an election challenge and to create confidence among the electorate that the winning candidates rightly hold their seat on your Board of Directors.