Florida ROC : Florida Mobile Home & RV Lawyer & Attorney : Scott Gordon : Lutz Bobo Telfair Eastman Gabel & Lee Law Firm : FL Condo & Homeowners Associations

We've got a very busy five or six weeks ahead of us with several chances for managers and board members in resident owned communities to hear from us:

• I'll be speaking about fines and suspending privileges as well as pet issues at the Mid-Florida ROC meeting at the Molokai community in Leesburg on Tuesday morning, November 29th.

Bill Korp and I will be making presentations on elections, budgets, and a number of other topics at our upcoming ROC "roundtables":

• Thursday, December 1, at Horizon Village in N. Fort Myers
• Thursday, December 8, at Venice Isle Estates in Venice
• Thursday, December 15, at Westwinds in Bradenton

Our "roundtables" begin at 10 A.M. and end between noon and 12:30.  These events are great for board members that want to learn and also network with residents from other communities.  Refreshments are served and there's no charge.   If you're interested in attending and haven't already rsvp'd, please email either Kathy Sawdo (ksawdo@lutzbobo.com) or Karen Midlam (kmidlam@lutzbobo.com).  Just let either of them know which one of these "roundtables" you'll be attending, how many will be attending from your community, and whether you'll need directions to the host community.

I'll also be speaking at Tamiami Village in North Fort Myers on the morning of December 21 for the monthly meeting of SWFROC and will be presenting a seminar on the procedures and requirements for the election of directors in ROCs after the January 4 breakfast meeting of the West Florida chapter of the Community Associations Institute.

I hope to see you at one or more of these events.

Have a happy and relaxing Thanksgiving surrounded by friends and family.   Go Gators and Go Blue!

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Every ROC has at least one "gadfly"--that owner who has decided, for whatever reason, to devote every waking minute to creating as much misery as possible for the manager, the board, and the other members of the community.   We consider a community lucky if it's home to only one of these cantankerous creatures.

What happens when that "gadfly" decides to run for the community association's board of directors?

Let's assume that this"gadfly" is a unit owner in a condominium or cooperative association.   He (or she) meets all of the statutory qualifications (and there are more conditions for candidates for the board in condominiums than there are in cooperatives) and gives the association written notice of the intention to be a candidate at least 40 days before the election.

Our "gadfly" then begins campaigning by going door to door, handing out flyers, making phone calls and sending all kinds of political advertisements to other unit owners by mail and email. 

In addition, the "candidate information sheet" that the "gadfly" submits to the association not less than 35 days before the election doesn't contain any information about the "gadfly's" background, education, and qualifications.  Instead, the "gadfly" has filled the entire 8 1/2 inch by 11 inch sheet with factually incorrect statements about the current board members, false accusations against the community's manager, and campaign promises that the "gadfly" clearly will not be able to keep even if he or she is elected. 

Can the association prevent the "gadfly" from campaigning?

• There are no provisions in the Florida Statutes or Florida Administrative Code sections governing the election process in condominium or cooperative  associations that prevent a candidate from campaigning.   Assuming that the gadfly has not improperly obtained the email addresses and phone numbers of the other unit owners, the association is well advised to simply allow the gadfly to campaign.

Can the association edit the "gadfly's" candidate information sheet or tell the "gadfly" that the information sheet won't be included in the election materials unless the "gadfly" submits a revised sheet that contains only the "gadfly's" background, education, and qualifications?

• The Florida Administrative Code Sections governing these information sheets in both condominium and cooperative association elections are clear that these sheets may describe the candidate's background, education, and qualifications as well as other factors deemed relevant by the candidate.
• In addition, Florida's statutes provide that condominium associations and cooperative associations are not liable for the contents of the information sheets provided by the candidates.
• Finally, the Election Brochures developed by Florida's Division of Condominiums, Timeshares, and Mobile Homes for both condominium and cooperative associations caution that "an association may not edit, alter, or otherwise modify the content of the information sheet".

In other words, ROC managers and board members have to assume that the "gadfly's" fellow unit owners will approach the election of the association's board members in an intelligent and responsible fashion--regardless of the outcome of that election. 

We've got several seminars and presentations scheduled for late November and the month of December and I'll post that information in my next entry.

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I cringe every time a member of a resident owned condominium or cooperative association mentions that an event has been scheduled to "meet the candidates" running for the board of directors of that community. 

It's clear from the Florida Statutes governing the election of directors in condominium associations and cooperative associations that there is a very specific process that must be followed.  For example, if a candidate requests that the association include an information sheet with the election materials to be sent to the unit owners, that sheet must be no larger than 8 and 1/2 inches by 11 inches, and must be furnished by the candidate to the association at least 35 days before the election.

The applicable Florida Administrative Code sections are even more specific and make it clear that the role of the association is to remain completely impartial in regards to any and all candidates.   Both cooperative associations and condominium associations are expressly prohibited from editing, altering, or otherwise modifying the content of that information sheet and the original copy of that sheet becomes part of the association's official records. 

The intent that the association remain completely impartial during the election process is also evident in the requirements set forth in the Florida Administrative Code that the association must obtain the consent of two or more candidates before "consolidating into a single side of a page the candidate information sheets submitted by those candidates". 

Of course, the requirements that the ballot itself only indicate the candidates in alphabetical order and that the ballot not indicate which candidate or candidates are incumbents on the board (as well as the prohibition of write-in candidates) is further evidence of the desire for a purely impartial election process free from interference or influence by the association.

Now, what happens if, in the midst of this process, the association decides to sponsor or schedule a "meet the candidates" event--and one or more of the candidates is unable to attend?  Or one candidate is not allowed to speak as long as the other candidates?  Or perhaps the sound system goes out after the first two candidates speak and the other candidates are not able to be heard by all of the members in attendance? 

How about a candidate (or one or more of his followers) that wants to pass out (or does in fact circulate) additional campaign materials at this event?  Can the association allow this at an association sponsored event?  If so, are these materials now part of the "official records" of the association?

Finally, what happens when one of the candidates who is not elected to the board of directors complains that he lost the election because:

• he was unable to attend the "meet the candidates" event and notified the association but the association refused to reschedule,
• he wasn't allowed to speak for as long as the other candidates,
• other candidates were distributing additional campaign materials at the event and he was not told this would be allowed,
• the sound system went out while he was speaking, or
• he didn't feel he needed to attend the event since he had already provided the association with his information sheet

I'm not sure any condominium or cooperative association wants to find out whether an arbitrator with the Department of Business and Professional Regulation or a judge in one of our county or circuit (or appellate) courts will agree with that candidate when he argues that the association, by sponsoring that "meet the candidates" event, violated the provisions of the Florida Statutes and the Florida Administrative Code that seek to protect and preserve the impartiality of the election process.

Hopefully, ROC boards will consider these concerns when deciding whether to sponsor or schedule "meet the candidates" events in the future.

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We are now well into our "season" in Florida and most resident owned communities will be holding their annual meetings during the next few months.  It's thus a very good time to remind my blog readers that are members of condominium or cooperative associations of some of the important differences between ballots and proxies:

• In general, neither general proxies nor limited proxies can be used to elect the directors of a condominium or cooperative association.   The applicable provisions of the Florida Statutes that deal with the election of directors of condominium associations (F.S. Section 718.112(2)(d)) and cooperative associations (F.S. Section 719.106(1)(d)) specify that the members of the board of directors shall be elected by "written ballot or voting machine".   While the majority of voting interests in a condominium association with ten or fewer units or a cooperative association can provide in their association's bylaws for a different voting procedure that allows for elections to be conducted by limited or general proxy, I suspect that the bylaws governing most ROCs do not allow for this alternative procedure.
• F.S. Sections 718.112(2)(b) and 719.106(1)(b) provide that, unless the association's bylaws provide for a different percentage, the percentage of voting interests required to constitute a meeting of the members shall be a majority of the voting interests (in other words, 50 percent plus one) and that, unless otherwise provided in the association's governing documents or the applicable Chapter of the Florida Statutes (either 718 or 719), "decisions shall be made by owners of a majority of the voting interests represented at a meeting at which a quorum is present".    While limited proxies or general proxies can be used to establish a quorum as provided in Sections 718.112(2)(b) and 719.106(1)(b), ballots cannot be used for this purpose.   In other words, in order for a member to be counted as "present" in establishing a quorum at the annual meeting (or other membership meeting), that member must either be present in person at the meeting or have delivered his properly executed general or limited proxy to his proxy holder or the association prior to the meeting.
• Neither general proxies nor ballots can be used for votes to waive or reduce the statutory reserves otherwise required by statute or to waive the financial reporting requirements of F.S. Section 718.111(13) (for condominium associations) or F.S. Section 719.104(4)(b).  The only way a unit owner can validly vote on these matters is either by limited proxy or in person at the meeting where the voting occurs.
• The election of directors occurs at the annual meeting even If a quorum cannot be established at that meeting if at least twenty percent of the eligible voters have cast a ballot in that election, as provided in F.S. 718.112(2)(d)3 and F.S. 719.106(1)(d)1.

The provisions governing timeshares and mandatory homeowners associations are somewhat different and members of timeshare communities and subdivisions should consult with their association's attorney for additional information.

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