Q: Our small condominium association (27 units) has a number of unit owners who are either foreign nationals, primarily residing abroad, or marine industry folks working offshore for months at a time. It is hard for them to vote in our board elections. Must condo board election ballots only be cast by traditional, hardcopy “snail-mail” paper ballots, or can owners be permitted to vote by e-mail, or by some alternative online system? (D.A., via e-mail)
A: Voting by e-mail, facsimile, or scanned ballots is not legally permissible. There is an “opt-out” procedure for condominiums of 10 units or less, but that does not apply to you. If paper balloting is used, the ballots and related envelopes must be “delivered” before the meeting, either by mail or hand delivery.
Electronic voting or “e-voting” has been an option available to community associations in Florida since 2015. While I would say it got off to a slow start, its popularity has definitely increased over the past several years.
If your association wants to permit electronic voting, it must be done in compliance with Section 718.128 of the Florida Condominium Act. To implement e-voting, the board must first adopt a resolution at a duly noticed board meeting, which must meet certain requirements. Among other procedures required, the notice of the board meeting must be noticed to each owner at least 14 days in advance of the board’s meeting. The notice must be both posted with an agenda and delivered to the owners. Delivery is permissible by U.S. Mail or by e-mail to those owners who have consented in writing to receive their official association notices in that manner.
There are some “rules” when it comes to electronic voting that are set forth in the statute and so the voting system selected by the association must have the capabilities required by Florida law. For example, the association must provide each owner with a method to authenticate the owner’s identity on the online voting system; a method to confirm that the owner’s electronic device can communicate with the online voting system at least fourteen days before the deadline; and, a method to transmit an electronic ballot for the election of the board that ensures the secrecy and integrity of the ballot.
Additionally, the voting system must be able to keep and store electronic votes so that they are accessible for recount inspection. There are a number of vendors who offer this service, and they can all likely assist the association with the technical requirements. It is also important to work with the association’s attorney or the party who prepares your annual meeting notice materials, as the Florida Administrative Code also contains certain disclosures that must be made in the notice materials for condominium elections where e-voting will be used.
It is also worthwhile to point out that the Florida Condominium Act was amended in 2024 to provide that an association which has authorized electronic voting may not prevent an owner from voting in an election electronically. I am still trying to understand what perceived problem this new law was trying to address. While I do not believe an association could single out any owner or group of owners and tell them they cannot vote online, there may be situations where an association may choose to forego offering e-voting in a particular election. One example might be where there were errors in the notices or deadlines having been met. Vendor problems might be another.
I would also note that homeowners’ associations can likewise permit e-voting and must follow procedures similar to those required for condominiums. The enabling statute in the HOA context can be found in Section 720.317 of the Florida Homeowners’ Association Act. It is, for all intents and purposes, the mirror image of the condominium statute, except that there are no state-imposed rules to be followed, and the 2024 change to the statute, discussed above, does not apply in the homeowners’ association context.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.