TC Palm Q&A Column, February 25, 2018

By February 25, 2018News, Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law.  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 condominium election is fast approaching.  The Association mailed out the ballots and did not include my bio page in the package even though I sent it to the Association with my nomination.  They only included the resumes of the incumbent directors.  After I raised this issue, the Board emailed all of the resumes to the community 10 days before the election.  What do I do?

-D.R., Vero Beach

A: There are not many election errors that would completely invalidate an election, but this is one of them.  Pursuant to section 61B-23.0021 of the Florida Administrative Code, the condominium should cancel the scheduled vote and start again.  Specifically, Section 61B-23.0021 provides that “the failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters shall require the association to mail, transmit, or deliver an amended second notice within the time required by this rule, which shall explain the need for the amended notice and include the information sheet(s) not included with the initial second notice. If an amended second notice cannot be timely mailed, transmitted or delivered, the association must re-notice and reschedule the election following the procedures as set forth in subsection (8) of this rule.”  This means that because your association is not able now to timely amend the mailing and send out the proper election materials in a timely manner, the election must be rescheduled.   Simply emailing the additional bio pages in the days leading up to the election will not be sufficient to cure the failure to include all of the resumes in the official mailing.

Q: My condominium association is installing new pavers at the pool that are a slightly different color than the existing pavers.  Our documents require 2/3 of the membership to approve big alterations like this and there has been no vote.  Did the Board act legally?

-G.R., Hutchinson Island

A: Perhaps.  To properly answer the question, we would need to review your specific governing documents to determine whether the Board was able to unilaterally approve the paver alteration.

First, I have seen many documents that only require membership approval when the cost of the pavers exceeds a certain dollar threshold, or percentage of your budget.  If this is in your documents, and assuming the cost of the pavers was a relatively low percentage of your overall budget, it may be exempt from membership approval despite the change in color.

Next, it is possible that the existing color was not attainable for replacement purposes.  In the context of roofs, for example, we are seeing many damaged roofs from Hurricane Irma needing complete replacement because it is simply impossible to match the tiles which were installed years ago. Here, if the Board was required to obtain membership approval but was simply unable to secure that specific color, it would allow the Board to install a different paver and the analysis may also depend on the similarity of the available pavers in this context.

Thus, the default rule is that the membership must approve material alterations to the common elements, but there are exceptions to the membership voting requirement and this may have fallen into one of those exceptions but we would first need to review the controlling documents.

Q: I am a candidate running for the Board of Directors in my homeowners association.  Another candidate is going door to door and asking for proxies intending to vote as a proxy in the election of directors.  I was told that proxies are not allowed in the election.  What is the law?

-T.P., Hobe Sound

A: The law is very different here between condominiums and homeowners associations.  Pursuant to Chapter 720, Florida Statutes, governing homeowners associations, proxies may be used in the election of directors unless the governing documents self-impose a restriction against the use of proxies.   In other words, the default answer is that the proxies are permitted unless your Declaration, Articles of Incorporation or Bylaws specifically prohibit proxies and require the owner to vote directly.  

This is very different from condominium associations where the law requires owners to vote directly by using the secret ballot and envelopes.  In a condominium, a proxy holder is not allowed to cast the ballot of the owner.  The proxy holder can vote on other matters such as documents amendments via limited proxy, but not in a condominium election.

Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. 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, Adamczyk, 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.