“Will Mistake Require A New Election?” – Naples Daily News

“Will Mistake Require A New Election?” – Naples Daily News

Q:  I recently lost the election at my condominium by a few votes.  Although my name was on the ballot, my resume was not included with the ballot mailout.  Doesn’t this require the association to have another election? T.V.

A:      If you timely submitted your candidate information sheet, and you can provide that you did, the election was fatally flawed and a new election must be held.

The Florida Condominium Act states that a unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before a scheduled election. Upon request of a candidate, an information sheet, no larger than 8 1/2 inches by 11 inches, which must be furnished by the candidate at least 35 days before the election, must be included with the mailing, delivery, or transmission of the ballot, with the costs of mailing, delivery, or electronic transmission and copying to be borne by the association.

Rules from the Division of Florida Condominiums, Timeshares and Mobile Homes state that there are three “fatal” election flaws for condominium associations which will always require a new election if a challenge is made. Election challenges must be made within 60 days.

The three “deadly sins” in condo elections are: (1) failure to send the first notice by the 60 day deadline; (2) failure to timely deliver information sheets (resume) for each candidate in the second notice; and (3) failure to include the names of all the candidates on the ballot.  Other election irregularities are usually examined on a case-by-case basis, with an eye toward whether the error could have influenced the outcome.

Here, a fatal flaw has been committed as your information sheet, which you timely submitted to the association, was not included within the second notice of annual meeting.  If you challenge the election and can prove that you timely submitted your information sheet, the Division will order a new election.

Q:     My condominium association is made up of mostly elderly owners and residents.  We aren’t currently registered as a “55 and older” community.  Can we vote to become such a community now even though we have been in existence for a long time? A.W.

A:      There is a process whereby an existing condominium association can become a “55 and older” community.  The federal Fair Housing Amendments Act of 1988, as amended by the Housing for Older Persons Act, states that communities meeting certain conditions demonstrating an affirmative intent to provide “housing for older persons” are exempt from prohibitions in the law against “familial status” discrimination. This means qualifying communities may legally exclude families with children.

Under these laws, 80 percent of the occupied units must be occupied by at least one person age 55 or older. The association would also need to amend the community’s applicable governing documents to implement a covenant requiring occupancy by persons age 55 or older. The association must also adopt and enforce policies and procedures that demonstrate an intent to provide housing for persons 55 or older, including age verification procedures and periodic updates.

Penalties for discrimination based on familial status are harsh and are often pursued against directors and managers individually. The association should consult with its legal counsel before taking any further steps.

David G. Muller is a Board-Certified Attorney in Condominium and Planned Development Law with Becker & Poliakoff, P.A. in Naples.  Send questions to Attorney Muller by e-mail to dmuller@beckerlawyers.com.