Let’s pretend it’s the night of your annual meeting. It’s time to verify the signatures and count the ballots. Someone reminds the attorney not to count the votes of any owners who are more than 90 days delinquent. Are they right? Maybe….
I would first argue that without the Kaufman or “as amended from time to time” language in your governing documents, you can’t suspend anyone’s voting rights. Let’s assume however that the language is actually contained in the governing documents. Is the delinquent owner prevented from voting now? Maybe…
The question then becomes, whether or not there was a previous properly noticed board meeting, whether the board voted to terminate the voting rights of those members who were at least 90 days delinquent, whether all of the names of those persons were read into the record and put into the minutes of the meeting and whether the owners were advised in writing of the board’s decision. Failure to do any one of those things and the delinquent unit owners gets to vote.
What about units owned by corporations and LLC’s? Almost all of your bylaws contain a provision that requires the corporation or LLC to indicate who the specific person is that is authorized to vote on behalf of the corporation by signing a voting certificate. If there is no voting certificate on file, should the vote from that unit automatically be ignored? Not necessarily. If the association has not enforced the voting certificate requirement in the past, they may be precluded from doing so now. When the attorneys in my office are confronted with such a situation, we do a quick Sunbiz check and if any one of the officers or directors that are listed with the Secretary of State’s Office signed the exterior envelope, we count the vote.
Sometimes, the governing documents even require a voting certificate to be signed by both the Husband and the Wife, appointing one of them to vote on behalf of the unit. This is absolutely permitted. However, if the association never enforced this issue previously, they will be precluded from doing it this year.
Trusts that own units sometimes present a difficult problem as well. Often times there is no voting certificate on file for the trust and the trust document is almost never provided to the association. So who is authorized to vote for the trust if you can’t determine who the trustee is? I’ll count the vote if the name of the trust matches the person signing the envelope.
Powers of Attorney are even more confusing. Should you be allowed to give someone your Power of Attorney to vote in a condominium election? The answer to that is NO. The reason is that proxy voting is not allowed in condominium elections and giving someone your power of attorney is really the same thing as giving them your proxy. On the other hand, you can give someone your proxy in a condominium which allows them to vote for you to recall someone on the Board.
Again, there are actually lots of legal decisions that need to get made at your annual meeting. On the same night, your documents need to be reviewed, the statutes and administrative code need to be reviewed, so do corporate documents, voting certificates, trusts, deeds and more. Get legal help, especially if you live in a large association as these legal issues will no doubt cause confusion if you’re not prepared to confront these issues.