Hardly anything generates more buzz and quarrel within community associations than the annual board of director elections. During the annual meeting and election season, numerous legal inquiries are made regarding the law on the election process, election disputes and challenging election results. Challenging an election requires meticulous and timely action. This blog post discusses the requirements to challenging a community association election through the mandated arbitration process.
In Florida, election disputes and challenges for both condominium and homeowners’ associations are statutorily mandated for arbitration with the Florida Department of Business and Professional Regulation, Division of Condominiums (“DBPR”). See Fla. Stat. § 718.1255(1); Fla. Stat. § 720.311(1). The window of opportunity to act and have an election dispute arbitrated is tight. Any challenge to the election process must be commenced within 60 days after the election results are announced. See Fla. Stat. § 718.112(2)(d)4.c.; Fla. Stat. § 720.306(9)(a).
Election results are typically announced during the annual election meeting, which means any arbitration petition must be filed with the DBPR within 60 days of that meeting. Filing the arbitration petition is not the first step but, rather, the final action in a multi-step process to properly initiate an election challenge. All necessary steps must be taken within this 60-day deadline so that the arbitration petition can be timely and properly filed.
The statutory prerequisites to filing an arbitration petition include the petitioner providing the respondent with the following: (1) advance written notice of the specific nature of the dispute; (2) a demand for relief, and a reasonable opportunity for the respondent to comply or to provide the relief; and (3) notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the dispute. Fla. Stat. § 718.1255(4). If the petitioner fails to satisfy these three prerequisites then the arbitrator will refuse to hear the dispute and the election challenge will be dismissed.
These three requirements can all be satisfied in one comprehensive pre-arbitration written notice, so long as the written notice is provided early enough in the process to give the respondent “a reasonable opportunity to comply or to provide the relief.” Delivering this written notice on day 50 of the 60-day timeline may not be reasonable notice in the eyes of the arbitrator, putting the petition in danger of being dismissed at the outset. Thus, the challenger must act quickly to get the wheels in motion soon after the election meeting. Conceptually the pre-arbitration requirements may seem relatively straightforward and simple to comply with but, in reality, they can be quite tough to satisfy within the tight 60-day deadline.
Most election disputes and challenges begin with an informed hunch, rumors and/or ‘inside information’ among the members, which must first be investigated and its accuracy vetted prior to filing an arbitration petition. For example, the scuttlebutt may be that one of the elected directors was actually behind in assessment payments and unable to run for election or votes were cast by people not listed on the voting certificates or, more nefarious, the box was stuffed with fraudulent ballots.
While these are all valid reasons for challenging an election, those hunches and rumors must be validated prior to filing the arbitration petition. Why? Because the prevailing party in arbitration is entitled to recover from the losing party his/her attorney’s fees and costs incurred. Fla. Stat. § 718.1255(4)(k). You never want to arbitrate an election challenge over a rumor or hunch that turns out to be unfounded, making you liable for the other party’s legal expenses. So how do you investigate and verify the hunch or rumor? The best way to uncover the ‘smoking gun’ in a community association dispute is to make a proper official records request. Within the official records you will find the voting certificates, all election materials and assessment ledgers for each unit. Fla. Stat. § 718.111(12). Once an official records request is made, the association must make those records available within 10 days. Time will then be needed to review the records and verify the basis for the challenge.
Now it becomes apparent how the 60-day deadline is actually a very tight deadline, which is stressful to meet and does not leave much time to waste. To illustrate, let’s say the rumors and hunches don’t surface until a week after the election, an immediate official records request is made where the records are not made available until 10 days later and it take 3 days for a person to find the time to review all the records. You are now suddenly one-third of the way through the 60-day deadline and you still must draft and deliver a formal pre-arbitration written demand notice that covers the three statutory prerequisites mentioned above and provides the respondent with a ‘reasonable opportunity to comply.’ Keep in mind that some time must still be set aside to actually draft the arbitration petition, compile and attach all necessary documents to support the petition, and to file it with the DBPR. This does not leave much room for any delays or roadblocks.
Most of the time an election challenge involves the association as the respondent, and the association will almost always have its attorney represent it in the arbitration action. While individual members can appear in arbitration actions pro-se, many members would feel more comfortable having an attorney represent them against the association’s attorney. Thus, a challenger must also make time within the 60-day deadline to retain an attorney and deliver all necessary information to the attorney for a timely filing.
The intent of this blog post is not to discourage members from making election challenges but, instead, to educate challengers on the process involved so that they are well prepared at the outset. If there is a valid reason for challenging and disputing an election then, by all means, any person desiring to bring a challenge should do so. The challenger, however, must be aware of the 60-day deadline, the prerequisites to filing an arbitration action, and the importance of investigating and vetting the basis for the challenge prior to filing. There is much to accomplish within a tight time frame to make a proper election challenge. It is recommended that anyone thinking of challenging an election first consult with competent legal counsel to ensure the process is handled correctly.