Condos and HOA's

Be prepared for annual election of board members

The first quarter of the new calendar year, also known as “season” is coming up and this is the time that most condominium and homeowners’ associations have their annual meetings and annual election of directors because the most residents are in town.

If you live in a condominium, at least 60 days before the annual meeting/scheduled election, the association must mail a first notice of the date of the election and 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 the scheduled election. The candidate can also provide a candidate information sheet (resume) within 35 days before the scheduled election.

It is very important that a candidate makes sure that the association receives the notice of intent to be a candidate on or before the 40 day deadline. If the candidate misses the 40 day deadline, even by one day, the candidate cannot be on the ballot nor automatically be on the board if less intents are received than there are open seats for election.

If there are more intents to be a candidate received than there are director seats coming open for election, then there will be a ballot and election at the annual meeting. The ballot has to be sent to all owners, along with a second notice of annual meeting at least 14 days before the annual meeting/election.

If there are less intents to be a candidate received than there are director seats coming open for election, then the candidates who got their intents to the association before the 40 day deadline will automatically be on the new board.

For homeowners’ associations there is no requirement for first and second notices of annual meetings. The election of directors, if one is required must be held at, or in conjunction with the annual meeting or as provided in the governing documents. The notice of annual meeting must also be sent to all members at least 14 days before the meeting. The election must be conducted in accordance with the procedures set forth in the governing documents of the Association and all qualifying members of the association are eligible to serve on the board and a member may nominate himself or herself as a candidate for the board at the annual meeting.

However, if the election process of the homeowners’ association allows candidates to be nominated in advance, then the association is not required to allow nominations at the annual meeting. For this reason, many homeowners’ associations will adopt election process rules that will mirror the process used in condominium associations (60 day 1st notice, 40 day intent to run deadline, 35 day information sheet deadline and 14 day 2nd notice), so that candidates must put in their notice of intent to be a candidate at least 40 days before the annual meeting/election. Once the homeowners’ association has adopted such election process rules, there will no longer be any surprise nominations for directors from the floor at the annual meeting.

It is instructive to know who is qualified to be a candidate for the board. For most condominium and homeowners’ associations, the bylaws provide that a candidate must be a member of the association. However, some bylaws do not require directors to be members so they could have a non-owner Manager, CPA, Attorney or Engineer, tenant or golfing partner be a director.

A candidate must be eligible to be a candidate to serve on the board of directors at the time of the deadline for submitting a notice of intent to run in order to have his or her name listed as a proper candidate on the ballot or to serve on the board. A person who has been suspended or removed from the board by the division of condominiums or who is delinquent in the payment of any monetary obligation due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot. A person who has been convicted of any felony is not eligible for board membership until such felon’s civil rights have been restored for at least 5 years of the date such person seeks election to the board.

Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time.