Q: A question has come up in my homeowners’ association as to whether owners are permitted to vote by proxy at owner meetings. If so, where is this right found? (C.D., via e-mail)
A: Section 720.306(8) of the Florida Homeowners’ Association Act states that members have the right to vote by proxy unless otherwise provided in the governing documents.
The statute sets forth what is required for a proxy to be valid. A proxy must be dated, must state the date, time, and location of the meeting for which the proxy was given, and must be signed by the person authorized to execute the proxy. Proxies are only effective for the specific meeting for which they are given, and that meeting may be lawfully adjourned and reconvened. However, proxies automatically expire 90 days after the original date of the meeting.
The use of proxies in homeowners’ associations is substantially more liberal than under the condominium laws. For example, the condominium statute mandates that items which require a substantive owner vote must use a “limited proxy,” which is essentially an “absentee ballot.” Conversely, the use of “general proxies” is still legally permitted in homeowners’ associations. Another major difference is that the condominium laws forbid the use of proxies in the election of the board of directors, while there is no similar prohibition in the law for homeowners’ associations.
Q: I live in a home that requires being in a homeowners’ association. I would like to know how far in advance the association must send out the information for the annual meeting, including the ballot for board members and how I can ask to be put on the ballot if I choose to run? (R.W., via e-mail)
A: Section 720.306(5) of the Florida Homeowners’ Association Act states that the notice of membership meetings, which would include the annual meeting, must be mailed, delivered, or electronically transmitted to the members no less than 14 days prior to the date of the meeting. Electronic transmission (e-mail) may only be used for official notices if the member has consented in writing to receive legal notices in that fashion.
Unlike the Florida Condominium Act, which sets forth detailed procedures on how director elections must be conducted, the Florida Homeowners’ Association Act does not do so. Rather, Section 720.306(9)(a) of the statute simply states that elections of directors must be conducted in accordance with procedures set forth in the governing documents for the association.
Other than what the governing documents require, there are no mandatory procedures regarding the process for the election of directors in a homeowners’ association, including any requirement that ballots be mailed out for the board election.
The statute does state that every member has the right to run for the board. The law states that unless the governing documents provide for a mechanism that allows owners to self-nominate in advance of the annual meeting where the election is held, owners have the right to nominate themselves from the floor of the meeting.
While the statute does not require the use of secret or mail-in ballots in elections, it does set forth the process which must be used when elections are conducted in this manner. That process is similar to what is used in condominium associations where the ballot must be placed in an unmarked inner envelope, which is then placed in an outer envelope, which has been signed by the owner.
Specific election procedure is one of the areas where I have found many homeowners’ association documents to be deficient. Many associations follow the condominium process because it is fair, secret, and simple to administer. However, following the condominium procedure in the HOA election context should be authorized by the bylaws of the association.
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.