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DOS AND DON’TS OF ELECTION CHALLENGES by Rembaum’s Association Roundup

DOS AND DON’TS OF ELECTION CHALLENGES by Rembaum’s Association Roundup

  • Posted: Mar 27, 2024
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DOS AND DON’TS OF ELECTION CHALLENGES

Rembaum’s Association Roundup

Pursuant to their relevant statutory provisions, election disputes that take place in condominium, homeowners’, and cooperative associations are subject to mandatory nonbinding arbitration before the Division of Florida Condominiums, Timeshares, and Mobile Homes (the “Division,” for short). It is referred to as “nonbinding” because the arbitrator’s order is not final until 30 days after its issuance, which provides time for either party in the dispute to challenge the decision to their local circuit court, which hears the case de novo (anew).

As you will read, not every election dispute will be heard by the Division. As a threshold matter of importance, the Division will not hear election disputes within 60 days prior to an election or 60 days after the election has taken place. In order to bring an election challenge, Florida Statutes require prior written notice to the other party of the dispute, where a reasonable opportunity to correct the alleged error is provided, and it is clearly expressed that if the alleged error is not cured, an arbitration action will take place. In a prior arbitration case, it was held that providing only 10 days to cure the alleged defect in a pre-arbitration notice was insufficient. Therefore, it is suggested to provide more than 10 days opportunity to cure the alleged election defect prior to filing an action for arbitration.

Interestingly, the general rule is that to have standing to challenge election results, arbitration action must be brought by a candidate or an individual who was prevented from being a candidate.  The Division has even held that a member who was not a candidate did not have standing to challenge the election results that other persons should have been declared the winning candidates. While these arbitration decisions are not binding precedent, they are instructive and, if nothing else, useful in evaluating the best course of action.

In the context of condominium election challenges, there are three flaws that are typically “fatal” to the association, if committed. They are i) a substantive or serious defect in the first notice of election, ii) the failure to include a timely submitted candidate information sheet in the second notice of election, and iii) failure to include the name of each eligible candidate on the election ballot. While each of these can potentially be timely cured in advance of the election, if not, then they likely lead to a successful election challenge.

For example, failing to mail the notice of election to one or more owners or the failure of the first or second notice of election to accurately state the street address of the meeting have been considered as “fatal” flaws. Also, the failure to include a timely submitted candidate information sheet or failure to include the name of a candidate on the ballot have also been considered as  “fatal” flaws. However, so long as the election is re-noticed from the second notice of election, including all of the candidate and information sheets and/or also including the name of all of the candidates on the ballot, then such fatal flaws can be cured in advance of the election. In these instances there would be no further solicitation of candidates, but rather a rescheduling of the night of the election itself by sending a revised and corrected second notice of election at least 14 days prior to the election which would cure that defect. This amended second notice should clearly state the reason(s) for having to send the corrected notice.

It is important to note that while condominium association elections are strictly construed in accordance with relevant Florida Statutes, homeowners’ association elections occur in accordance with their governing documents. Therefore, whether the above fatal flaws have applicability to a homeowners’ association fully depends upon the style of election set out within the governing documents.

Arbitrators with the Division have held that a new election will have to be scheduled if  in the governing documents there is included a requirement that candidates be full-time residents of the state of Florida or even reside in their unit full time and such requirements were enforced during the election. Therefore, there cannot be a residency requirement of any kind for board members. Similarly, arbitrators have held that associations cannot require candidates to complete a criminal background check or even execute an acknowledgment that they are not a felon.

Contrary to popular belief, the relevant Florida Statutes do not require candidates to be members of a community association in order to run for the board of directors (often, “membership” is defined in the governing documents as being an owner of a parcel within the community). However, such requirements can be set out in the governing documents; but if such a requirement is not in the governing documents, then the board cannot disqualify a potential candidate because he or she is not an owner or member. This means that without such requirements specifically set forth in the governing documents of the association, any non-member, including tenants and occupants, are qualified to run for the board of directors. Therefore, if you desire to avoid such a circumstance, you should consult with legal counsel for your association regarding whether such requirements exist in the governing documents; if not, then you should consider preparing an amendment for the community to approve to ensure that only members who are actual members/owners of the association are qualified to run and serve on the board.

As to the first notice of election, notwithstanding any strict requirements set out in the first notice of election regarding where potential candidates must submit their notice of candidacy, it is not sufficient to exclude a candidate on the basis of the candidate  delivering his or her intent to be a candidate elsewhere so long as it is reasonable to conclude the association actually received notice of such candidate’s intent to run for the board. For example, a specific address could be required to mail the intent to run form, but the fact that a candidate hand-delivered such notice to a board member or manager would likely not be sufficient grounds to exclude the candidate.

Through a variety of arbitration decisions, the arbitrators have made clear that if the violation at hand would not have changed the results of the election, then the challenge will fail. For example, an association that improperly excluded several ballots due to perceived flaws with the outer envelope, which in fact were later held not to be flaws at all and which if counted would not have overturned the otherwise valid election results if the ballots were later included in the total count, would not have changed the result.

In other instances where numerous violations combine to clearly affect the reliability of the election results, then an election challenge may be valid. For example, where unit owners are permitted to cast ballots without inner envelopes, at least one owner was permitted to retrieve his ballot and change it, and nobody verified signatures on the outer ballot envelopes and where at least one unit owner was allowed to cast a ballot after the polls had already closed, then cumulatively the election results were determined to be  no longer reliable and a new election was required.

While the Division has promulgated condominium election rules in the Florida Administrative Code, it has not yet done so for homeowners’ associations. Therefore, the body of condominium arbitration decisions can provide some guidance; but for the most part, when examining homeowners’ association election challenges, the arbitrators are required to consider the significance and totality of violations in their decision-making as to whether to void an election, or not.

At times, for reasons that really do not make any practical sense, some management companies when preparing a homeowners’ association election revert back to the condominium form of election with a first notice, second notice, intent to run, etc. rather than relying on the homeowners’ association governing documents, which have a completely different election style and where voting is by proxy or in person. Also, there are no requirements to declare candidacy in advance of the annual election, meaning a candidate could actually nominate himself or herself from the floor of the meeting on the election day itself. When management companies go on autopilot and use the condominium style of election contrary to the requirements set out in the homeowners’ association governing documents, then the arbitrators will likely require a new election to take place in conformity with the governing documents of the homeowners’ association.

A successful challenge of a homeowners’ association election often rests upon whether the alleged violation affected the outcome of the election. This once again is evidence that unless the alleged violation would have changed the outcome of the election, then the election challenge likely fails even if there were serious irregularities during the election process.

A few odds and ends are worthy of discussion as well. An active board of directors should not use the association’s pulpit for campaigning. Doing so can lead to a successful election challenge. However, an existing board member can certainly campaign on his or her own time and using their own means but not through the association or its website. If the association has not enforced use of voting certificates, then to do so without providing advanced written notice and an opportunity for the owners to comply could invalidate election results. Finally, if a valid election does not occur because either a quorum was not achieved or in the condominium context at least 20 percent of the eligible voters did not cast the ballot, then there is no obligation of the association to try again.

When bringing an election challenge is under consideration, ask yourself if the irregularity would have brought about a change in the outcome of the election. If not, then, think twice about bringing the challenge. In any event, it is worthwhile for an association concerned with its election process to consult with the association’s lawyer for a detailed conversation as to how best to avoid such problems in the future.

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VIDEO: Community Association Elections | Q&A Webinar | Kaye Bender Rembaum

VIDEO: Community Association Elections | Q&A Webinar | Kaye Bender Rembaum

  • Posted: Nov 14, 2023
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Community Association Elections | Q&A Follow-up Video Webinar | Kaye Bender Rembaum

KBR Attorney Allison L. Hertz returns to answer some of the audience questions from her CE credit Elections webinar. This video is for informational purposes only and is not to be considered as legal advice.

 

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ANNUAL MEETING TIPS FOR ASSOCIATIONS

ANNUAL MEETING TIPS FOR ASSOCIATIONS

ANNUAL MEETING TIPS FOR ASSOCIATIONS

by Enrolled Agent Steven J. Weil, Ph.D., EA, LCAM, Royale Management Services, Inc.

 

As associations plan their annual meetings, these reminders and specific steps will be useful.

The annual meeting is a membership meeting in which every member can and should participate. Participation comes through properly-made motions, seconds, taking part in the discussion of motions and through voting.

The first order of business he is to appoint the chairperson to run the meeting.  The chairperson can be anyone who the members agree should chair the meeting.  In many associations the board president chairs the meeting; however, this requires approval of the members. Some associations ask their manager or attorney to chair the meeting.  This is acceptable as long as it is approved by the membership.  In large associations having a professional chair the meeting can help to keep it on track and see that the required business gets done properly.

A motion as to who shall chair the meeting can be made by any member of the association.  This motion must be seconded and then voted on by the members present. If the motion is approved by a majority of the member’s present, the chairperson is elected for the meeting.
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ALL ABOUT E-MAILS  By Eric Glazer, Esq.

ALL ABOUT E-MAILS By Eric Glazer, Esq.

  • Posted: Mar 08, 2023
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ALL ABOUT E-MAILS

By Eric Glazer, Esq.

 

There really is a lot to know when it comes to e-mails.  Here’s a brief outline:

Can Directors Communicate and Vote By e-mail?

Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail.

Example:  Friday night is a board meeting.  On the agenda is whether or not to hire Joe’s Landscaping Service.  Between now and Monday the Board members can send e-mails to each other suggesting whether or not to hire Joe’s.  Even if all decide to hire Joe’s, that vote must still take place Friday night at the properly noticed Board meeting.

Are these e-mails official records of the association, accessible to the unit owners?

E-mails on the personal computers of individual directors are not official records of the condominium association. The property of an individual director does not become the property of the association because of his office on the board.  Even if directors communicate among themselves by email strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change.

Similarly, an email to an individual director or to all directors as a group, addressed only to their personal computers, is not written communication to the association. This must be so because there is no obligation for a director to turn on the personal computer with any regularity, or to open and read emails before deleting them.  The conclusion may be different if the association owns a computer on which the management conducts business including emails (analogous to government public records); or if emails are printed up and passed around for discussion at a board meeting.

Does that Mean A Director’s E-mail can Never Be Seen By Anyone?

Just because the e-mail may not be an “official record” of the association does not mean that nobody can ever get to see it.  Trust me, if the association is involved in litigation, and I serve a subpoena on a director for their e-mails which may have relevant information, the court will require production of those e-mails.  So board members be warned, before you hit the SEND button think about whether or not you would be comfortable with a judge, jury or opposing counsel reviewing it as well.

Are the E-mail Addresses of the Unit Owner’s an Official Record obtainable by an Owner?

E-mail addresses are not accessible to the unit owners, unless the reason why the association is in possession of that e-mail address is because the unit owner signed a form consenting to receive notices by e-mail.

Have any additional questions?  Send us an e-mail.

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THE ANNUAL MEETING/ELECTION:  IT’S NOT A BOARD MEETING!

THE ANNUAL MEETING/ELECTION:  IT’S NOT A BOARD MEETING!

  • Posted: Mar 08, 2023
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THE ANNUAL MEETING/ELECTION:  IT’S NOT A BOARD MEETING!

by Steven J. Weil, Ph.D., EA, LCAM, President, Royale Management Services, Inc.

What then is “the Annual Meeting?” 

By law Florida condo associations must have an Annual Meeting each year; but, conversely, they need not have an election every year if there are no new candidates.  What can be somewhat confusing is that they are two separate things with separate quorum requirements and with a rule that they must be held on the same day. Further, conduct of the Annual Meeting should not be confused with that of a Board meeting.

The statutory requirement for an annual meeting (which seeks to give owners a “voice”) was written to ensure that the residents are well informed, especially in communities that have very few board meetings.  It’s a members’ meeting.  No Board business, board action or voting may be conducted; but there may be reports, and there may be a “State of the Association” speech to highlight events of the previous year.

Board members are not even required to attend the Annual Meeting. Although a Board member could chair the Annual Meeting, he or she would be doing so as a resident, not a Board member.  As a rule, the Meeting is chaired by an appointed impartial resident, the Property Manager, or, if deemed necessary, by the association’s attorney. Any Motions that are made are passed by a show of hands of those present.

If there is an election, residents may vote either in person by placing their ballot in the ballot box or by mailed-in ballot. The proxy that is sent to residents in advance with the meeting announcement has nothing to do with the election. Its only purpose is to establish a quorum for the Annual Meeting.

There are two separate quorum requirements for the Annual Meeting and the Election. For the Annual Meeting, it’s 50% of the resident population plus one. For the election, the quorum is only 20% of the resident population.

How To Conduct the Election

Assuming there are candidates or Directors with expiring terms, and an Election is needed, it may take place simultaneously with the Annual Meeting. Once the Annual Meeting is turned over to the impartial Chair and the Chair has determined that a quorum has been met, he or she introduces the Inspector of Elections.

The Inspector then introduces the ballot counters and confirms that, per the Election rules, they are not Board members or Board candidates, nor are they related to Board members or candidates.

Before the counting can begin the Inspector is asked to confirm that there was a quorum for the Election. If a 20% election quorum does not exist, ballots are not opened and the current board remains in place for the coming year.

The Inspector, along with the ballot counters, also confirms that the signatures of the outer envelopes mailed in advance to residents for voting purposes have been verified and are unopened.  Those envelopes are required to provide the unit number, name of the voting member and be signed on the outside. Units with more than one owner, units owned by a trust, LLC, or units owned by a corporation must have a voting certificate on file that shows who is authorized to vote for the unit. Outer envelopes should contain the sealed ballot envelopes.

Proxies should not be placed in the ballot envelopes. No identification or markings are permitted on the inner ballot envelopes.  When an outer ballot envelope is improperly completed, it is marked “disregard” and left unopened.

Ballots may no longer be accepted once the first ballot is opened.  The polls are closed by the Inspector once there are no more new voters confirmed by a Motion from the floor to close the polls.  The residents pass the Motion by a show of hands. Ballots cannot be accepted once the counting process begins.

That being done, the Inspector turns the meeting back to the appointed Chair, who begins the Annual Meeting while the ballot counting takes place in plain sight of residents.  Anyone may observe the vote counting but may not interfere.

At the conclusion of the counting and verification, the results are announced by the Inspector, after which the Chair may adjourn the Meeting.  All election materials must be kept for one year.

It should be noted that in most associations, newly elected board members begin their term immediately once the vote has been concluded.

It is also advisable to schedule an Organization Meeting of Board members immediately following the annual meeting so that directors and officers can be appointed or reappointed and take their positions without a lapse in leadership.

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Beckerballot – State-of-the-art online voting platform to your associations portfolio of services. Powered by beckerlawyers.com

Beckerballot – State-of-the-art online voting platform to your associations portfolio of services. Powered by beckerlawyers.com

  • Posted: Mar 23, 2022
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Beckerballot – Powered by beckerlawyers.com

Technology is an unavoidable and critical part of any business. As such, why not consider implementing a state-of-the-art online voting platform to your associations portfolio of servicesBeckerBALLOT.com is the perfect solution to help you streamline operations for your community, is extremely easy to setup, and it will give you the added advantage of increasing both your relevancy and residential appeal, thereby setting you apart from your competition!

Watch our Webinar for more information

 

Here’s what you will learn during the webinar:

  • Walk through of BeckerBALLOT.com and its administration section/voting portal
  • See examples of how others have successfully utilized the platform to benefit their communities
  • View a demonstration on how to upload users, how to set up a vote, how to cast a vote, and more
  • Learn about the functionality and ease of use
  • Find out about flexible pricing options
  • Participate in a Q&A with our customer support team to answer any questions you may have

 

Click here to view upcoming BeckerBALLOT.com webinars.

The voting platform must also comply with a number of other requirements to ensure voter access and voter anonymity for election votes. It is strongly recommended that you speak with your lawyer to ensure that the proper initial legal steps have been taken whenever you decide to offer online voting as a voting option in your community. In Florida the shared ownership statutes require that the board of directors first pass a statutorily-compliant Board Resolution Authorizing Electronic Voting and obtain written consent from the owners wishing to utilize online voting.

Check out BeckerBallot.com/FAQs for more information

 

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Meet BuildingBoard, an e-voting and virtual meeting solution to streamline annual sessions for your properties.

Meet BuildingBoard, an e-voting and virtual meeting solution to streamline annual sessions for your properties.

  • Posted: Mar 21, 2022
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Meet BuildingBoard, an e-voting and virtual meeting solution to streamline annual sessions for your properties.

With this tool, you can:

·        Invite unit owners to meetings seamlessly via email

·        Send meeting reminders and add candidates to ballots

·        Host annual meetings virtually

·        Achieve quorum at every annual meeting

·        Automate voting – each unit owner votes via their computer or smartphone (whew, no more manual counting!)

Click here to learn more BuildingBoard
and start running a better meeting today!

So, go ahead and kick up your feet! Optimize all of the day-to-day business you already take care of with BuildingLink by trusting us to support your annual meetings too.

Ready to make your life easier?
Reach out to sales@buildingboard.com.

Richard Worth

Regional Sales Director – Florida

407-529-6063

Richard@BuildingLink.com

 

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Online voting system option for your members, those members consenting to vote online will be invited to register and vote using BeckerBALLOT.

Online voting system option for your members, those members consenting to vote online will be invited to register and vote using BeckerBALLOT.

  • Posted: Sep 24, 2021
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Online voting system option for your members, those members consenting to vote online will be invited to register and vote using BeckerBALLOT.

Eligible voters will be invited to activate their account online and vote!

 

The simplicity and security of our software makes BeckerBALLOT the perfect solution for you!

Use the software for board of directors votes, amendment of governing documents, waive reserves and approval of material alterations and more! Your members need to simply log in, cast their votes and be on their way.

 

 

VOTERS

If your association has joined BeckerBALLOT and you are ready to vote ONLINE, you are in the right place!

Your association has provided you with the ability to easily cast your vote and ensure that no matter where you are, you can participate in important association voting.  It’s fast, accurate and secure.  You’ll have the confidence in assuring your vote is counted, all without the necessity of filling out and mailing your paper ballot!

ADMINISTRATORS

BPBALLOT, the original electronic voting software is NOW BeckerBALLOT, a joint partnership between Becker & Poliakoff and SHYFT digital.

We offer an easy-to-use, secure electronic voting software solution that is compliant with state law. We provide the ability for members in condominiums, cooperatives and homeowner associations to cast their votes online.  You will be able to easily and seamlessly facilitate and increase member participation in important votes. All votes stay secure, anonymous and tracked for validity.

Once your Board adopts a Resolution which offers an online voting system for your members, members consenting to vote online may register and vote using BeckerBALLOT.com. Read the full electronic vote process here.

 

 

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