Monday, February 12, 2018

Getting A Mulligan (Do-Over) for Your Board in 2018

Whether we call them mistakes, oversights, slip-ups or boo boos, we all make them including volunteer board members who are often hamstrung by both operational and time constraints.

The new year provides an optimal opportunity to correct items from 2017 or even earlier.  The law allows a corporation which has taken authorized actions but which were done in a procedurally incorrect manner to ratify those actions by approving them again, but this time following proper procedure.

Have any of the following occurred in your community?

1.    You made alterations to the common elements or association property but failed to obtain the requisite membership approval.

2.    You did not hold your annual meeting on the date specified in the documents and a member called you out on it.

3.    You had to discard several election ballots because you did not have voting certificates on file for those units.

4.    You were challenged when you attempted to enforce a rule or restriction because a prior board failed to enforce or failed to properly adopt that same rule or restriction.

5.    You took a Board action (filled a vacant seat, signed a contract, fired an association employee, levied a special assessment or adopted a budget, etc.) outside the scope of a duly noticed Board meeting and vote.

6.    Your members passed an amendment and you failed to record it or an amendment was prepared and never presented to the membership for a vote.

Here are the solutions to the foregoing problems:

1.    We can prepare and pass a membership vote which would allow your members to approve of and ratify all prior changes, additions and modifications made by the Association to the Common Elements and Association property or any other action that required a membership vote which was not taken.

2.    We can amend your documents to give your Board more flexibility when setting the date and time for the annual members' meeting and election so you do not risk a technical violation in the future.

3.    We can amend your documents to eliminate the requirement for a voting certificate for husband and wife and other co-owners of units other than units owned by corporations or business entities.  Doing so will eliminate most of the confusion and time-consuming fuss at your meeting to determine whether or not the outer envelopes were properly signed by the voting certificate holder.  Along those lines, implementing online voting will also eliminate these outer envelope judgment calls at your election.

4.    Just because a prior board has not strictly and uniformly enforced certain provisions of your governing documents does not mean your board is forever prohibited from doing so.  We can undertake a process known as republication which will allow you to breathe new life into those unenforceable restrictions and once again allow you to successfully enforce them.

5.    Prior unauthorized or procedurally improper actions require a discussion regarding the nature of those actions and preparation of the necessary materials to ratify same.

6.    If the membership vote was within a relatively recent period of time, we can proceed with recording that amendment or amendments; if not we may need to start the process over again. If you have been sitting on an amendment which was prepared but never voted upon, depending on the age of the amendment, we may need to review and revise that language.

This list is not comprehensive.  There may be other items where a transition in management or in the composition of the Board may have resulted in items falling through the cracks. If you have questions about how to correct any of these problems in your community, you can email me at or by phone at .1-844-CAREBP1.

Monday, February 5, 2018

Improve Your Members' Chances of Casting a Successful Election Ballot

Every year, I attend many of my clients' annual meetings and elections and it is always disappointing when some members' election ballots must be discarded due to avoidable errors.

For Florida condominiums and HOAs who have adopted a "condominium style" election process, the election protocol that was implemented to discourage voter fraud can also be overly complicated for some members to follow.  The goal in any election is to facilitate the greatest voter participation while maintaining the integrity of the voting process.

Here are some ways you can educate your members on how to cast their election ballots properly:

1.    If your association is required under your documents to use voting certificates when a unit is owned by more than one person or is owned by a corporation or other business entity, make sure you have a voting certificate on file for each unit impacted by this requirement and, where possible, amend your documents so that units owned by more than one person or by husband and wife are exempt from a requirement that is better applied to only units owned by entities and trustees;

2.    If you have out-of-state or international owners, consider hand delivering their voting package before they leave town or fed-ex the materials to them so they have time to receive and return their ballots.  Getting your members, particularly your non-resident members, to agree to receive notice by electronic transmission will reduce the problems and costs associated with physical mailings;

3.    Members need to understand that the outer envelope must identify the name of the unit owner, the unit # and be signed by the member or the voting certificate holder.  Outer envelopes that cannot be validated by confirming the foregoing information are subject to being discarded;

4.    The inner ballot envelopes should only contain the ballot and not other papers such as a voting certificate or a proxy.  The inner ballot envelope should not contain any markings which would identify the individual who cast that ballot;

5.    Members can vote for fewer than the permitted number of candidates but not more than the permitted number of candidates.  Ballots which are cast for too many candidate will be discarded;

6.    Offer online voting as an option for your election.  When election votes are cast online, the judgement calls which come into question pertaining to outer and inner envelopes do not apply.  In addition, in many online voting systems, a member may not cast a vote for more than the permitted number of candidates; and

7.    Members should hand deliver or mail back their election ballots. Preferably, the owner will personally place his or her election ballot into a locked ballot box to ensure delivery.

In a Florida condominium, an election of directors can proceed with as few as 20% of the eligible voters casting a ballot; that is a very small percentage of members deciding the composition of a Board of Directors which will make important and monetarily significant decisions for the coming year(s). If you deduct a number of ballots from that already small number due to technical flaws or make it impossible for out of state voters to have time to return their ballots, the chance of having the election results truly mirror the membership's desires

It is incumbent upon every community association member to understand the steps that must be taken to ensure his or her vote counts and the best boards understand that an informed electorate is integral to the community's overall success.

What impediments to casting a successful ballot have you encountered in your community? Let me know.