You are using an older browser version. Please use a supported version for the best MSN experience.

No election without annual meeting in homeowner’s association

Florida Today logo Florida Today 5/2/2021 Ryan Poliakoff

Support local journalism. An unlimited digital subscription to floridatoday.com is just $1 for 3 months. Click here and subscribe today.

Dear Poliakoffs,

Our annual membership meeting was held in February. All five board members were in attendance, with two on Zoom and the others at the clubhouse. The president opened the meeting and approved minutes from the January 2021 meeting. He then informed us that there was not a quorum of owners in attendance or by proxy to vote on proposed changes to the association’s declaration of covenants, so no action could be taken. The board advised they would revisit these changes later on.

Start the day smarter. Get all the news you need in your inbox each morning.

The secretary of the association, who had previously withdrawn her name from consideration for the 2021 election, questioned if the termination of the meeting affected her decision not to be a candidate for the board. The licensed community association manager present informed her that at the end of the meeting she was no longer a board member, and that the remaining board members would fill the vacant seat.

No minutes of the meeting were ever produced, and I was told that, because there was no meeting, minutes were not required.  Is that correct? How can the existing board establish its legitimacy if there is no document memorializing what happened at the meeting?

Signed, E.K.

Dear E.K.,

You don’t specify whether you live in a condominium or a community governed by a homeowner’s association, but based on what you describe, I think that you must live in an HOA. HOA elections operate differently than condominium elections. In a condominium, the election is a separate, parallel procedure to the annual meeting. No quorum is required for the election, but at least 20% of the units must vote to have a valid election. So, in a condominium, even if the annual meeting fails to open due to lack of a quorum, the election itself will usually go forward.

In a homeowner’s association, the election is typically a part of the annual meeting. The statute expressly says that, unless the association’s procedures provide otherwise, nominations for the board must be taken from the floor at the annual meeting. However, in both condominiums and HOAs, no election is required unless there are more candidates than vacancies exist on the board.

So, let’s assume that you are in a typical HOA where nominations must be taken from the floor. Four people (not including your secretary) have submitted their names in advance of the meeting, for five open board positions. You get to the annual meeting and fail to open the meeting, because you do not have a quorum. 

I think, in that circumstance, the proper outcome is that you have a holdover board, because their replacements were not properly elected. You can’t conduct business at the annual meeting, and so you were not able to take nominations from the floor. The HOA Act, at 720.306, Fla. Stat., provides that “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.” But, in this scenario, nominations from the floor were required, and so that provision does not kick in. As such, the best argument is that all five of the prior directors carry over and continue to serve until the next election. In that situation the secretary would have to formally resign in order to vacate her board seat.  It’s not clear whether she simply withdrew her name as a candidate, or if she actually resigned from the board, in advance of the annual meeting. If she just did not submit her name as a candidate, she would now have to resign from the board. If, instead, she had resigned, then she is no longer a board member.

Or, let’s assume, in contrast, that your election procedure allows nominations in advance of the meeting and expressly prohibits nominations from the floor. In that situation the statute kicks in, and the four candidates who submitted their names in advance are automatically seated to the board, with one vacant seat. That vacant seat is usually filled by the remaining directors, unless your bylaws provide otherwise.

Even though you failed to achieve a quorum, minutes should still be kept. They will be extremely simple, listing the time the meeting was called to order, the fact that a quorum was not present, and that the meeting was then adjourned. There would not be any information in the minutes relating to the board or the election, as none of that business was conducted at the meeting.

Finally, when you say the president approved the minutes from the January meeting, I am assuming that was a board meeting, and so those minutes should be approved at the next board meeting, not at a membership meeting (particularly one at which business could not have been conducted.)

Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Email your questions to condocolumn@gmail.com. Please be sure to include your location.

Support local journalism by subscribing at cm.floridatoday.com/specialoffer.

This article originally appeared on Florida Today: No election without annual meeting in homeowner’s association

AdChoices
AdChoices

More from Florida Today (Melbourne)

image beaconimage beaconimage beacon