HOA Q&A: If an election of directors is uncontested must we still vote?
Editor’s note: Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: Our HOA Bylaws provide that even if the election of directors is uncontested the candidates still have to be approved at an election by a vote of the owners. Do the Bylaws control over the statutes which provide that no election is required if the election is uncontested?
A. In my opinion the Bylaws do not control and no election is required. Florida Statute 720.306(9)(a) governing homeowner associations provides that “[a]n election is not required unless more candidates are nominated than vacancies exist.” Similar language is found in the Chapter 718 governing condominiums. Bylaws purporting to require an election in this circumstance contradicts Florida law and is therefore unenforceable and void. See H. Graydon Hopkins v. Tamarynd Place Condominium, Inc., Department of Business and Professional Regulation Summary Final Order 2004-02-7664 holding that “[t]he bylaws do not overrule the statutory provision that eliminates the need for an election where the number of candidates does not exceed the number of open board seats.”
Q. Our condominium association bylaws provide that in order to qualify to run for the Board of Directors the candidate must be a resident of Florida and reside in the community at least 7 months out of the year. Is this legal? -- C.G., Treasure Coast
A: No. The Condominium Act and the Homeowners Association Act provide that every owner has the right to be a candidate for the Board if they otherwise meet the qualifications listed in the Statutes. The Acts require that the candidates be at least 18 years old, not be a convicted felon (unless their civil rights have been completely restored for at least 5 years), not be delinquent in the payment of any monetary amounts owed to the Association and not be under suspension by the Department of Business and Professional Regulation. The Division of Condominiums has issued several declaratory statements and rulings that hold that residency requirements are not enforceable. While such rulings are not strictly applicable to Homeowner Associations, in my opinion, residency requirements are not enforceable in HOAs either.
Q: I think our association election was flawed and improperly conducted. How, can I challenge the election results? -- J.Z., Boca Raton
A: In order to challenge the election results you must file a petition for arbitration with the Division of Condominiums within 60 days of the election. However, before filing the petition you must send a notice to the Association demanding that the election be done over and provide the Association an opportunity to do so. Further, you must indicate in the letter that if the Association does not comply you intend to file for arbitration. Note: that the Division of Condominiums also has jurisdiction over Homeowners Associations for election disputes so in an HOA you must follow the same protocol.
Richard D. DeBoest, Esq., is a Partner of the Law Firm Goede, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
This article originally appeared on Treasure Coast Newspapers: HOA Q&A: How can I challenge association board election results?
