HOA election Bylaws vs Florida Statutes

There is some debate going on amongst members of my HOA regarding what is the correct course of action to take in relation to the election procedures. However, section 720.306 (9) of the 2010 Florida Statutes have caused great confusion and different interpretations of this section especially as the majority of homeowners in our community do not live in the US and will not be attending the AGM.

Section 720.360 (9)states:
ELECTIONS AND BOARD VACANCIES.—Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. 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 or, if the election process allows voting by absentee ballot, in advance of the balloting. Except as otherwise provided in the governing documents, boards of directors must be elected by a plurality of the votes cast by eligible voters. Any election dispute between a member and an association must be submitted to mandatory binding arbitration with the division. Such proceedings must be conducted in the manner provided by s. 718.1255 and the procedural rules adopted by the division. Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by an affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director. In the alternative, a board may hold an election to fill the vacancy, in which case the election procedures must conform to the requirements of the governing documents. Unless otherwise provided in the bylaws, a board member appointed or elected under this section is appointed for the unexpired term of the seat being filled. Filling vacancies created by recall is governed by s. 720.303(10) and rules adopted by the division.

The instructions in Our HOA bylaws are as follows:

All elections to the Board of directors shall be made on written ballot which shall : (a) describe the vacancies to be filled,; (b) set forth the names of those nominated by the Nominating committee for each such vacancy; and (c) contain a space for a write-in vote by the Member for each vacancy. Such ballots shall be prepared and mailed by the Secretary to the Members at least 14 days in advance of the date set forth therein for a return (which shall be a date not later than the day before the meeting at which the vote is to be taken).

Some of the members believe that we should allow nominations from members present at the AGM and subsequently defer the election for a month. Others believe that if sufficient time has been given to request nominations well in advance of the AGM we should follow the bylaws. Is there a right or wrong answer? Has anyone else had this problem and, if so, how was it resolved?

Can the homeowners choose to change the number of BOD from 3 to 5 at time of annual elections. I remember at one time seeing this on the proxy. We are having our annual election this coming Tuesday. It had to be rescheduled because a quorum was not met. I did go out and tried collecting proxy as we use to do that back in NY so as to meet the quorum. There was no effort by neither management nor present BOD to collect to meet the quorum. They had to send again letters to try and get homeowners to mail their proxy. Extra expense and also pay again the attorney for his time to monitor the election procedure. I mentioned to MGM to post it on the same bulletin they post the meeting to encourage homeowners to not forget to mail their proxy and also attend the meeting. I did explain to those homeowners who gave me their proxy that it would be returned to them at the meeting and therefore they could vote whom they wanted. Will see what happens this coming Tuesday.

You can change the number of board members. We did it. However, it is NOT during election time. It's part of your documentation. So you have to follow the rules about amending your documents. We went from 9 to 5. Took over 2 years to make that change but we were doing several other changes at the time too.

I'd be concerned about increasing that number. HOA's typically have ebbs and lows in owner participation. Meaning you may have many people interested now but 2 or 3 years from now, couldn't get a person to volunteer. So I would keep the board member number kind of low/respectable and just increase committee membership. ACC is a good committee to put additional volunteers in. They don't quite have the power of the board because the board can overturn the ultimate decision if there is a serious conflict. However, the ACC do approve appearance and maintenance suggestions to keep the property looking good.