BEFORE YOU CANCEL THAT ANNUAL MEETING

This is the time of year when I’m at my busiest, typically running from annual meeting to annual meeting.  So, what is supposed to occur at the annual meeting?  Often times the answer is right there in your bylaws.  The agenda is already prepared for you.  Just properly notice the meeting and follow the agenda.  In a condominium, a quorum of owners in attendance by proxy or in person is required to perform any business other than the election.  As long as 20% of the eligible voters participate in the election however, the election can continue with or without a quorum.  In an HOA a quorum is typically required even for an election.  However, a new law for HOAs states that:

 

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. An election is not required unless more candidates are nominated than vacancies exist. If an election is not required because there are either an equal number or fewer qualified candidates than vacancies exist, and if nominations from the floor are not required pursuant to this section or the bylaws, write-in nominations are not permitted and such qualified candidates shall commence service on the board of directors, regardless of whether a quorum is attained at the annual meeting.

 

This is a big change to HOA law and prevents Boards from rolling over forever, as long as the election process allows candidates to be nominated in advance of the meeting.  However, a quorum would still be required for any other business besides the election.

 

The date of your annual meeting is also determined in your bylaws.  Sometimes, there is no discretion as the bylaws mandate a specific date, i.e. the second Tuesday of January.  Suppose however, the Board simply wants to change the date of the annual meeting and disregard the date that is called for in the bylaws?  In  M & M Property Management, LLC v. Palm–Aire Country Club Condominium Association No. 2, Inc., 209 So.3d 57, 59 (Fla.App. 4 Dist., 2016) the court held that where the bylaws set the annual meeting and election date,  there is no authority permitting a postponement based solely on a majority vote of the Board.  The bylaws would have to be properly amended.

You want a smooth annual meeting?  Take my legal advice after having done this now for 28 years………. Serve food and drink.

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