HOA EDUCATION -- BOARD ELECTIONS

The election procedure in homeowners' associations is by far not as well regulated as in condominiums. That is definitely the reason why we hear so many complaints from owners about crooked elections, compared with elections in Banana Republics. Chapter 720.306 creates some sort of election procedure, but since the statutes are very vague, the problems in associations are increasing.

We hear endless complaints that HOAs utilize nominating committees to disenfranchise possible candidates. Boards will see to it that only party-line candidates will be on the ballot mailed out to the membership, more or less circumventing the provision that "a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held." [FS 720.306(9)]

Chapter 720 allows PROXY VOTING. It is obvious that the legislature meant a General Florida Proxy (See Example). If legislators had intended to use limited proxies, limited ballots -- or even ballots -- they surely would have said so, especially since the use of these limited forms eliminates the provision of candidate nomination from the floor. (Careful: Some sneaky boards and managers claim that the proxy forms they send out just serve the purpose to achieve the needed quorum. Make sure that the proxy form you sign SPECIFICALLY SAYS SO!)

The changes made in 2010 were a step in the right direction, but it's the typically incomplete job our Florida legislature is known for. Why not use the complete language of condo elections? For example, FS 718.111(2)(d) contains complete eligibility clauses that prevent convicted murderers from serving as board president. Proven language, specific rules and regulations and case law back up these condo election provisions. And finally, disallow associations to opt out of the statutory election process. It is ridiculous that a sitting board can help incumbents to stay in power. The board can make changes to the election process just by voting to change the bylaws.

Because of the vague wording of the statutes we are not seeing many election arbitrations. Even if elections are often skewed, owners are careful not to challenge elections because of possible high cost!

FAIR ELECTIONS IN HOAs?

Not with these provisions!

In 2004 the Florida Legislature added mandatory election arbitration conducted by the DBPR to chapter 720 [FS 720.311(1)].

REAL REFORM OF ELECTION PROCEDURES IS A MAIN PRIORITY FOR CHAPTER 720!

MANDATORY BINDING ARBITRATION FORM PETITION--ELECTION DISPUTE (PDF)

ELECTION ARBITRATION RULINGS

Wallace A. Ritchie and Deborah M. Ritchie V. Spruce Creek Property Owners' Association, Inc. (Case No. 2005-01-6667)
Steven and Kim Jakubaitis V. Section 20 Property Owners' Association, Inc. (Case No. 2005-00-0374)
David Parker V. East Linden Estates Homeowners Association, Inc. (Case No. 2007-04-5781)
Ronald V. Little V. Eagles' Reserve Homeowners' Association, Inc. (Case No. 2009-00-7989)

FS 720.306

(2) ANNUAL MEETING.--The association shall hold a meeting of its members annually for the transaction of any and all proper business at a time, date, and place stated in, or fixed in accordance with, the bylaws. The election of directors, if one is required to be held, must be held at, or in conjunction with, the annual meeting or as provided in the governing documents.

(5) NOTICE OF MEETINGS.--The bylaws shall provide for giving notice to members of all member meetings, and if they do not do so shall be deemed to provide the following: The association shall give all parcel owners and members actual notice of all membership meetings, which shall be mailed, delivered, or electronically transmitted to the members not less than 14 days prior to the meeting. Evidence of compliance with this 14-day notice shall be made by an affidavit executed by the person providing the notice and filed upon execution among the official records of the association. In addition to mailing, delivering, or electronically transmitting the notice of any meeting, the association may, by reasonable rule, adopt a procedure for conspicuously posting and repeatedly broadcasting the notice and the agenda on a closed-circuit cable television system serving the association. When broadcast notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average reader to observe the notice and read and comprehend the entire content of the notice and the agenda.

(8) PROXY VOTING.-- The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy.
(a) To be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy. A proxy is effective only for the specific meeting for which it was originally given, as the meeting may lawfully be adjourned and reconvened from time to time, and automatically expires 90 days after the date of the meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the person who executes it. If the proxy form expressly so provides, any proxy holder may appoint, in writing, a substitute to act in his or her place.

(b) If the governing documents permit voting by secret ballot by members who are not in attendance at a meeting of the members for the election of directors, such ballots must be placed in an inner envelope with no identifying markings and mailed or delivered to the association in an outer envelope bearing identifying information reflecting the name of the member, the lot or parcel for which the vote is being cast, and the signature of the lot or parcel owner casting that ballot. If the eligibility of the member to vote is confirmed and no other ballot has been submitted for that lot or parcel, the inner envelope shall be removed from the outer envelope bearing the identification information, placed with the ballots which were personally cast, and opened when the ballots are counted. If more than one ballot is submitted for a lot or parcel, the ballots for that lot or parcel shall be disqualified. Any vote by ballot received after the closing of the balloting may not be considered.

(9) ELECTIONS AND BOARD VACANCIES. — Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. All members of the association are eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held or, if the election process allows voting by absentee ballot, in advance of the balloting. Except as otherwise provided in the governing documents, boards of directors must be elected by a plurality of the votes cast by eligible voters. Any election dispute between a member and an association must be submitted to mandatory binding arbitration with the division. Such proceedings must be conducted in the manner provided by s. 718.1255 and the procedural rules adopted by the division. Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by an affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must conform to the requirements of the governing documents. Unless otherwise provided in the bylaws, a board member appointed or elected under this section is appointed for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by s. 720.303(10) and rules adopted by the division.

PROXY FORM

KNOW ALL PERSONS BY THESE PRESENT:

The undersigned owners, or their voting representative, of ___________________________

(Property Address)

_____________________ in Name of Association, hereby constitute and appoint the secretary of the association, his designee, or _____________________________, as nominee, and proxy with powers of substitution for and in the name and place of the undersigned, to appear, represent, and cast votes only as I specifically instruct in reference to the following matters to come before the NAME OF ASSOCIATION, Inc., Annual/Special Meeting to be held on DATE, at TIME, at Place with address.

General Powers

(check here) _____ I hereby authorize and instruct my proxy to use his best judgment on all matters which properly come before the meeting as may be authorized by Section 720.306(6), Florida Statutes.

The undersigned ratify and confirm any and all acts and things that the proxy may do or cause to

be done in the premises, whether at the meeting referred to above or at any change, adjournment, or continuation and revoke all prior proxies previously executed.

DATED:__________________ _______________________________________

UNIT OWNER SIGNATURE

*** If you will be unable to attend this meeting, please complete and return this Proxy Form to Office or have Proxy Holder bring it to the Annual/Special Meeting!

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SUBSTITUTION OF PROXY

The undersigned, appointed as proxy above, does hereby designate___________________ to substitute for me in the proxy set forth above.

DATED:___________________________ ______________________________

PROXY

(In no event shall this proxy be valid for a period of longer than 90 days after the date of the first meeting for which it was given.)

BLUE: If not filled out with name, the secretary of the board will be the proxy holder!

RED: Needs to be filled out before use!

JUST COPY AND PASTE INTO WORD!