FL HOA Arbitration or Pre-Suit Mediation

You have stated that "between attendees and proxies" you were short. Why did some owners receive proxies and some owners receive ballots (assuming that the proxies came from mail). Something doesn't add up. The attendees could have been given ballots but where did the proxies come from if the board sent out ballots instead of proxies?

I would add, that the BOD recognizes now that the documents were not followed--they were following the original covenants without regard to an amendment pass July of 2008; however, with the cost of an election being between $2k - $4k, they don't want to "redo" the election.

I think they are hoping I just go away; however, I plan to either serve them with pre-suit mediation or arbitration at the next meeting; however, I'm not sure which applies. In Florida we have mandatory pre-suit mediation for most covenant enforcement issues; however, recalls and election disputes are subject to arbitration. I'm struggling with which this falls into--there was no election (no election results to dispute) because there was no quorum.

The intention is compel them to hold an election as prescribed by the governing documents. They have already had 1 vote and decided 4-3 not to hold the election due to the cost associated. I have recently made them aware of the procedural errors (which they do not dispute) and they will have another vote on the subject--but initial indications are they still are not going to have an election because "they made a good faith effort to have an election" and that "it would cost ~$4000 to do so at a time we should be tightening our belts."

And the crux of the issue for me, if this requires Arbitration as an "election dispute" rather than pre-suit mediation, I only have 60 days to file from the date the election results are announced (which I assume would be the date we didn't have quorum).

I believe the primary difference is that a mediator helps negotiate a settlement between the parties whereas an arbitrator would hear both sides and then make a decision. In many cases, both sides agree in advance that the arbitrator's decision will settle the matter and the process isn't as formal as a court proceeding so you can make your case with or without a lawyer.

Since this is a dispute over an election, I think I'd prefer the matter go to mediation or perhaps arbitration. Generally, the process is faster and cheaper than going to court. Then again, fellow homeowners could be rallied and everyone go before the board and demand some sort of recount....that may take a little longer but it's cheaper for everyone

The result would be different in that either my self or the opposing candidate would have been elected. The sitting board member whose seat was up did not run, but when quorum wasn't established, chose to remain on the board.

The bylaws do not permit advanced ballots and specify limited proxies shall be sent instead (BOD sent advanced ballots and general proxies). Presumably, those 99 members would have submitted a limited proxy rather than a ballot and we would have had quorum. There's a lot more to this story, I could probably entertain everyone for weeks about the history of our board.

At this time we have 7 board members, of which only 3 have been elected either through circumstance or direct manipulation.

I have found a case which convinces me Binding Arbitration is in order. I appreciate everyone's thoughts on the matter.

http://www.ccfjfoundation.net/DBPRarbrulingHOAelection.html

ND, the avenue as you suggest would be an ideal compromise; however, since there was no quorum, those in attendance didn't get to vote (nor did the candidates have an opportunity to speak). While I believe I would end the winner in that circumstance, I don't think that would be right unless those people who were in attendance were also allowed to vote.

John H45 (Florida)

Respectfully, you probably should review this one carefully with a lawyer before signing on individually for mediation or arbitration that may leave you looking like some office seeker who has added ? $4K more Owners General Meeting expense where the Board is already back to a full 7. 'You cost us 25 cents. You are Satan'

Arbitration outcomes are often not certain nor is the cost, eg a 2004 arbitration about Rule-violating seagull feeding on a owner's balcony (in another jurisdiction) having hit that owner with $150,000 in arbitration awards.

Only you can know how much your HOA's own by-laws were contravened by the mail out package sent to owners.

However the subsequent quorum-failed Meeting itself could have been as much an "Election Meeting" as - depending on your bylaws - an "Audit receiving/ Auditor appointing Meeting" or a "Last Year's Minutes Meeting". Your state's Ch 720 does not appear to define an "Election Meeting". As you commented, short quorum may mean No Election Held at all.

Not helping your position is the likely onus to link the mailouts to the short quorum. Yes there were 99 whacky, by-law violating Ballots somehow returned, but could they be conclusively shown to induce the quorum -shortfall of 38 attendors/proxied ? I myself would suspect a connection, but it is a leap to prove that the illegal Ballots misled the 38 Owners-short into neither attending nor executing a lawful limited proxy. Yes there were illegal open-ended /unlimited proxies, but the same problem for you to overcome.

You may want to discuss getting together with justly annoyed owners to consider your state's chapter 720.303 (10) RECALL OF DIRECTORS remedy.

The 4 Directors who recently voted against attempting another Owners meeting, might need some incentive to respect owners rights and comply with how ch 720 and your by-laws address such in the Mailouts. ( Your state's ch 720.306 (2) only stipulates that the association "shall hold a Meeting of its members annually ..." without being insurers nor guarantors of quorum. It does not literally stipulate attempts after owners fail to deliver quorum ). But the recall threat with others may be more solid than trying to arbitrate an election never held.

Good luck.