While the condo statute outlines a very specific and rigid procedure on how HOAs should conduct the election, the HOA Statute doesn’t say much at all:
Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. Except as provided in paragraph (b), all members of the association are eligible to serve on the board of directors, and a member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held; provided, however, that if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting.
The statute also requires the election to take place at the annual meeting. In order to have an annual meeting you need a quorum present in person or by proxy. The quorum is typically 30% of all members. Voting by proxy is allowed in an HOA, unlike in a condominium. Nominations are also allowed from the floor, unless candidates are allowed to be nominated in advance of the meeting.
Our firm won an interesting HOA election case last year in arbitration before the DBPR. I think the case makes for some good precedent here in Florida and deals with an issue that has been plaguing HOAs for all eternity.
As we know, each and every year, we get complaints from people that live in HOAs who say “I want to get involved in the affairs of my community. I want to run for the Board. But every year, we can’t get a quorum at the annual meeting, so there is no election and the same Board has now rolled over for a decade.”
Well the case that we won is called Turner v. Butler Farms and it somewhat put a stop to that nonsense. Here’s what happened. At Butler Farms HOA the governing documents allowed people who want to run for the Board to submit their names to be candidates in advance of the annual meeting. The Board sent out a notice that there are 3 Board seats up for election this year. Four other board spots are not up for election as those directors are serving for a two year term. Our client, Mrs. Turner was the only person in the HOA to submit her name in writing as a candidate for the Board.
Of course, on the night of the election, the HOA is unable to obtain a quorum at their annual meeting. Therefore, the Board took the position that there is no election and the same 3 Board members roll over for another 2 year term. Now, Mrs. Turner was furious, because she was saying I’m the only person who submitted my name for three available seats ——- and the statute is clear —– if there are less candidates than available seats —-NO ELECTION IS NECESSARY. WHO CARES THAT THERE WASN’T A QUORUM AT THE ANNUAL MEETING? I WANT MY SEAT ON THE BOARD!
The Arbitrator held that even though this is in an HOA:
- Since the association allowed names to be submitted in advance of the annual meeting, and
- since Mrs. Turner was the only person who timely submitted her name to be a candidate and
- since there were less candidates than available positions,
no election was necessary —- and it was irrelevant that there wasn’t a quorum at the annual meeting. Mrs. Turner is now on the Board.
But here is where it really gets interesting. As to those 4 Board members who thought they would automatically remain for another year, the arbitrator removed them from the Board as well. It turned out that those four were rollover directors, meaning they were on the board solely because there was no quorum at the last election. Rollover directors must run for re-election every single year. Sine none of those 4 directors submitted their name to be a candidate, they were removed from the board as well.
This is the first time I am aware of a case in an HOA where there was no quorum for the annual meeting, but someone who wanted to get on the board actually got on the board. And if nothing else, it’s the right decision because it allows more people to participate in the affairs of the community. Here’s someone who was the only person to step up and volunteer. Why in the world shouldn’t she be allowed to serve?
So, the bottom line for HOAs about to conduct your election, if your governing documents allow people to submit their names in advance of the annual meeting, and there are less names submitted than available seats, it is irrelevant if you have a quorum at the annual meeting — no election is necessary — and the people who submitted their names are your new Board members.
Good luck with your HOA election this year.