Q: Due to the ongoing COVID-19 pandemic, many of the seasonal owners in our condominium will not be returning this year. This raises concerns about how we should conduct the election for directors. We understand that owners cannot vote in the election by proxy, and we don’t use electronic voting. Is there an exception that will allow owners who cannot travel to Florida to participate in the election? (G.R., via e-mail)
A: While there are provisions of the Florida Condominium Act that address extraordinary measures available to an association during a declared state of emergency, there is nothing specific in the statute or accompanying administrative regulations that address alternative election procedures.
The law requires that owners must vote for the election of directors by secret ballot. Therefore, owners who cannot travel to Florida and physically attend the meeting can still fully participate in the election by returning their election ballots by mail. Notwithstanding some of the recent controversy about mail-in ballots on the national stage, they have been used in condominium elections in Florida for almost 30 years, and the process seems to work fine.
Q: I want to paint my house the same color as another house in my neighborhood. I was unable to contact the neighbor to ask for the color code. Our management company has been unwilling to provide this information to me. Is the management company required to provide the color information to me? (J.N., via e-mail)
A: Section 720.303(4) of the Florida Homeowners’ Association Act requires the association to maintain various official records for at least seven years. The law requires the association to make official records, with limited exceptions that are not applicable to your inquiry, available for inspection or copying within 10 business days after receipt of a written request.
If your neighbor’s painting of their house required an architectural review committee application and approval pursuant to the community’s governing documents, any color sample or code would be considered an official record of the association and available to you on written request. If no color sample submission was required, the association is not obligated to supply this information.
Q: Our homeowners’ association bylaws provide for board elections at the annual meeting of members. Seven years ago, procedures were set to allow members to nominate themselves, but the nomination must be received by a deadline specified in the notice. These procedures are not officially in the homeowners’ association governing documents. At the annual meeting, two members nominated themselves from the floor, but the board rejected them because it was past the nomination deadline. Can the board refuse to allow “floor” nominations when our homeowners’ association documents do not prohibit floor nominations? (B.M., via e-mail)
A: Section 720.306(9) of the Florida Homeowners’ Act provides that a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held, unless the election process allows any person desiring to be a candidate to nominate themselves prior to the meeting.
Since the definition of “governing documents” includes rules adopted by the board, it may be that your board’s policy is legally proper. If the procedure conflicts with your bylaws, it wouldn’t be. In either case, it is best to clearly spell out election procedures in the bylaws.
Joseph Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions via e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.