HOA ELECTIONS: NO QUORUM NEEDED, IF ….

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published December 9, 2015

HOA elections are tricky – to say the least. The election provisions in the HOA ACT (FS 720) are vague and allow many different interpretations – many of the ones HOA members hear on a daily basis are plainly wrong. Our HOA REFORM BILL PART I in 2013 (H 7119) created a provision – using wording from FS 718.112 – that didn’t require an election if the number of candidates nominated in advance was equal or lower than the number of open seats. The language in FS 720.306(9) is actually self-explanatory:

FS 720.306(9) ELECTIONS AND BOARD VACANCIES.—

(a) Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. Except as provided in paragraph (b), 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; provided, however, that if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting. An election is not required unless more candidates are nominated than vacancies exist. 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 challenge to the election process must be commenced within 60 days after the election results are announced.

This provision was created because many HOAs fail to have the necessary quorum at the annual meetings to hold elections – and the sitting boards stays in power without having to go through the election process.

But attorneys and community association managers often came up with wrong interpretations of this new law, trying to help sitting boards that signed their pay-checks to stay in power. These attorneys and CAMs still used this wrong “excuse”: “No matter what the law says, a quorum has to be present at the election meeting in order to make this provision valid.” WRONG -- as confirmed by arbitrator!

But when Russell Robbins, Esq. and CAM Robert Miller (M&M PROPERTY MANAGEMENT LLC) used this argument against Laura Turner, the only candidate nominated for the April 2015 election of BUTLER FARMS HOMEOWNERS ASSOCIATION, INC. in Coral Springs and refused to seat her as director of the board, Laura Turner filed for election arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes.

And arbitrator Leah Simms came up with this final ruling in the case Laura Turner vs. BUTLER FARMS HOMEOWNERS ASSOCIATION, INC. – and granted petitioner Laura Turner the relief as requested.

Here is the important wording:

Accordingly, the following Order is being entered:

1. Incumbent board members Lyle Schwartz, Joan Shack and David Whitbourne, are removed from the board effective immediately and within 5 full business days after the issue date of this order they shall return to the association any and all records of the Association in their possession.

2. Petitioner is to be seated on the board immediately to serve a two year term and pursuant to Article IV2 of the bylaws, Petitioner may fill the remaining vacancies by appointment.

Please read the complete SUMMARY FINAL ORDER in this case to fully understand the meaning of this provision of the Florida Statutes.

I hope that association attorneys and CAMs are reading this arbitration case and stop dispensing wrong advice. It’s a shame that association members have to pay the legal fees because the so-called service-providers push their false interpretations.

This arbitration ruling just confirms that CCFJ, Inc. created the correct wording when we pushed HOA REFORM BILL PART I in 2013.

Hopefully more HOA ELECTION REFORMS to come in 2016 during the upcoming legislative session.