Traditionally, all phases of homeowners association board of directors elections, including nominations, voting, and vote counting, are conducted at the annual meeting. However, the time consuming nature of this process has led some homeowners associations to require nominations prior to the annual meeting instead of “from the floor” at the meeting. This saves time at the annual meeting by allowing the Association to confirm the eligibility of the candidates ahead of time. It also allows other conveniences, such as preparation ahead of time of accurate ballots listing all candidates instead of write in spaces. Notwithstanding the convenience that nominations in advance can afford, Chapter 720, Florida Statutes, the “Homeowners Association Act,” allows an association to require nominations in advance of the election in lieu of nominations from the floor only if certain statutory conditions are met. (Note to our condominium association readers: condominium association nominations and elections are governed by Chapter 718, Florida Statutes, and applicable regulations promulgated by the Florida Department of Business and Professional Regulation. As such, the information provided in this blog post is inapplicable to condominium associations.).
- 720.306(9), Florida Statutes, governs director nominations and provides, in relevant part:
(9) ELECTIONS AND BOARD VACANCIES.—
(a) 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…
Under this provision, a homeowners association is allowed to forego nominations from the floor at the election if its governing documents (declaration, articles of incorporation, and bylaws) require nominations in advance of the meeting and do not require nominations from the floor. However, considerable confusion has arisen with respect to whether a homeowners association may forego nominations from the floor pursuant to § 720.306(9) where the association’s governing documents are silent with respect to nominations but the board of directors has adopted election procedures allowing for nominations in advance. Several arbitration decisions from the Florida Department of Business and Professional Regulation (“DBPR”). See Villages of Rio Pinar Community Ass’n, Inc. v. Rowell, 2016 WL 7667605 (Fla.DBPR Arb. 2016), Gambee v. The Dunes Homeowners Association, Inc., 2014 WL 5350619 (Fla.DBPR Arb. 2014) and Hernandez v. Oak Haven Property Owners Association, Inc., 2017 WL 2601708 (Fla.DBPR Arb. 2017) have construed § 720.306(9)(a) as allowing a homeowners association to forgo nominations from the floor only if the governing documents establish a process for nominations to be made prior to the election. The arbitrators specifically found that board-adopted procedures for allowing nominations prior to the meeting which are not incorporated into the governing documents were insufficient to negate the general statutory requirement for nominations from the floor.
Those three holdings are in apparent conflict with the arbitrator’s decision in Villages of Bloomingdale I Homeowners Ass’n, Inc. v. Brown, 2014 WL 6437218 (Fla.DBPR Arb. 2014), in which the arbitrator found § 720.306(9) “to require the Association to allow every interested person to nominate himself or herself as a candidate in advance of the meeting, in which case floor nominations would not be required.” The Villages of Bloomingdale I Homeowners Ass’n arbitrator determined that such process would be sufficient despite there being no provision in the subject governing documents allowing persons to nominate themselves in advance of the meeting. In light of the conflicting decisions from the DBPR, we recommend that homeowners associations exercise caution before requiring nominations in advance unless such requirement is clearly set forth in the governing documents.
In order to avoid doubts about the validity of the election and a significant source of conflict in the community, homeowners associations must conduct their elections in full compliance with their governing documents and Florida law. Competent counsel can assist the Association comply with existing governing documents or amend of the governing documents to streamline the election process.