Q: My condominium association recently held its annual meeting and the election was quite close. Only one vote separated the candidates for the last open director position. The candidate that lost the election by one vote requested to review all the election materials, including the ballots. He determined that three election ballots, all with votes cast for him, were not considered in the official count because these three ballots were sealed inside the “inner” envelope. There are several owners that own multiple units within the condominium, and it is suspected that one of these owners probably got confused and placed all of their filled-out ballots, for all of the units they own, inside a singular “inner” envelope. Should these ballots have been counted? Can this owner challenge the election results? M.P.
A: These ballots were properly disregarded by the ballot counters. Rule 61B-23.0021(10)(a) of the Florida Administrative Code specifically addresses this situation. It states that any “inner” envelope containing more than one ballot shall be marked “Disregarded” and any ballots contained therein shall not be counted. The owner of multiple units can return one executed “outer” envelope, but they must use separate “inner” envelopes to cast their vote for each unit they own.
The affected candidate has the right to challenge the election results by filing a complaint with the Florida Division of Condominiums, Timeshares and Mobile Homes. The Florida Condominium Act requires an election challenge to be commenced within 60 days of the announcement of the election results. If the ballot issue referenced above is the only basis this candidate has to challenge the election, their challenge will probably fail.
Q: I serve on the board of my condominium association. An owner has been threatening to sue the association and the board members regarding a decision the board made to amend certain rules. The board recently received a demand letter from the owner’s attorney sent via certified mail. Along with threatening to file a lawsuit, the owner’s attorney demands access to certain records, and she poses several questions in her letter. What steps should the board take to protect its interests and the interests of the Association? T.C.
A: To begin, you should immediately notify the association’s attorney and provide them with a copy of the demand letter. The association’s attorney will advise the board of any applicable response deadline.
Next, the board should notify the association’s insurance agent regarding this legal threat and provide them with a copy of the demand letter. The association’s agent will help the board determine which of the association’s insurance carriers need to be placed on notice of the owner’s threat/claim. Most insurance policies require the insured to timely notify the insurance carrier of a threat or potential claim, and failure to timely notify the insurance carrier of a threat/claim could result in a denial of coverage.
You will also need to make any qualifying official records requested available for inspection within ten working days of the receipt of the letter by an association representative, pursuant to the requirements of the Florida Condominium Act.
Regarding the questions posed in the attorney’s letter, the Florida Condominium Act states when a unit owner of a residential condominium files a written inquiry by certified mail with the board of administration, the condominium association board shall respond in writing to the unit owner within 30 days after receipt of the inquiry. The condominium association board’s response shall either give a substantive response to the inquirer, notify the inquirer that a legal opinion has been requested, or notify the inquirer that advice has been requested from the division. If the condominium association board requests advice from the division, the board shall, within 10 days after its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the condominium association board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquiry. There are penalties if these deadlines are not adhered to.
It should also be noted that the condominium association may through its board of administration adopt reasonable rules and regulations regarding the frequency and manner of responding to unit owner inquiries, including a provision limiting owner inquiries to one per month.
Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples (www.beckerlawyers.com). The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this column does not create an attorney-client relationship between the reader and Becker & Poliakoff, P.A. 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 in the Naples Daily News.