HOA Elections (Florida) Help ASAP!

My HOA is having elections tonight and I need some help ASAP!

•Background info:
We have newsletter that we receive every once in awhile (last edition was from October). The newsletter stated that elections were coming up. The front page of the news letter had a date for elections set for 11/16 and another page in the newsletter had a date set for 11/20. Therefore there wasn't clarification on when the election was going to be held. 3 days ago (11/13) we received out ballots to pick who we want elected.

•Florida statute 720.306 says5) NOTICE OF MEETINGS.—The bylaws shall provide for giving notice to members of all member meetings, and if they do not do so shall be deemed to provide the following: The association shall give all parcel owners and members actual notice of all membership meetings, which shall be mailed, delivered, or electronically transmitted to the members not less than 14 days prior to the meeting. Evidence of compliance with this 14-day notice shall be made by an affidavit executed by the person providing the notice and filed upon execution among the official records of the association. In addition to mailing, delivering, or electronically transmitting the notice of any meeting, the association may, by reasonable rule, adopt a procedure for conspicuously posting and repeatedly broadcasting the notice and the agenda on a closed-circuit cable television system serving the association. When broadcast notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average reader to observe the notice and read and comprehend the entire content of the notice and the agenda

•Questions:
►With this being said is it going against the statute about how we should have a 14-day notice about meetings?
►Can anything be done to postpone the election so that residents have the proper amount of time to vote?
►If something can be done how should I go about doing it? (Who would I contact?)
►If nothing can be done then why?

•If anyone could answer any of these questions it would help me so much. Elections are in a few hours and it seems like the current HOA is trying to prevent new people from being elected onto the board.

•If you have questions for me please feel free to ask!

I think Geno's advice is excellent. I think I would also try to get in the Minutes that you felt constructive notice had not been given, because the newsletter spoke of two different dates. Also, if the Board or any members raises any other subject for motions, it's not lawful. Said subject has to be on the agenda, sent out in advance, so members can decide whether they want to attend and have their vote on any motions be counted. So far, I do not see that any agenda was distributed.

Also I was just informed that many people didn't even receive ballots to vote. I don't think it's right to have a vote when we only have 3 days to vote and not everyone even received a ballot to vote.

So since there wasn't proper notice of the meeting then we the homeowners are allowed to object to having the vote tonight and if the HOA doesn't postpone the vote for tonight we can go and file with the DBPR to arbitrate the dispute?

Thank you sooooo much!!! You have been a great help! Hope all goes well for us during the meeting. Thanks again.

Can you file a dispute - yes.

However, wait until the Board obtains the legal opinion and acts upon it. You may not have to file a complaint.

Better yet, offer to assist with mailing notices.
This way, you can be more in the loop and see what is going on.

Keep in mind, showing up at the meeting almost voids a complaint of improper notice as showing up basically provides a waiver of notice argument.

Therefore, the complaint of improper notice should come from those who did not attend.

Tim's advice is good, as usual.

A members meeting is not a board meeting, and while it's common for the association president to preside over it, the rest of the board are in attendance solely in their role as homeowner members of the association. The members should be making all the decisions at the members meeting, not the board. Of course it's fine if a director makes a motion at the meeting and someone seconds it and the entire membership present votes on it.

However, if there wasn't a quorum of homeowners present then there wasn't really a meeting at all and no business was transacted. There are only a couple of options when there's no quorum: adjourn the meeting, which ends it completely, or pass a motion "to fix the time to which to adjourn," which is proper even if there is no quorum. Such a motion sets the date and time where the SAME meeting will re-convene (hopefully with a quorum). The same business that was on the original agenda can be taken up at that time. Re-convened meetings such as this are one of the reasons proxies are valid for up to 90 days in Florida.

If a motion to adjourn to a fixed date and time was not made, however, then a re-scheduled meeting will have to be noticed again (with the 14-day requirement).

It's a common strategy for many boards in Florida condos and HOAs: the board wants to retain its power and does what it can to make sure there's no quorum at the annual meeting. Then they adjourn it and declare the current directors get to stay and serve for another term. I'm not saying that's what your board of directors did, but the shoe fits. How long have the current directors been on the board? How many of them are there? How many expiring terms are there leaving empty seats up for grabs at the election? How many holdover board members with another year or more to go in their terms? Was there going to be a contested election?

You have 60 days from the date of the meeting whrere the elction was supposed to take place to file a petition for arbitration with the DBPR. Maybe wait a couple of weeks to see if they show any signs of doing the right thing. In this arbitration case from 2008.... -->Burnamun vs South Oaks HOA<-- on page 14 you'll see the arbitrator ordered a new election within 30 days because proper notice of the meeting was not sent to ALL of the owners in the HOA. The arbitrator said,

"... The failure to provide numerous members of the association notice of the election meeting is a substantial irregularity meriting the ordering of a new election. Such relief is especially justified considering that a few votes separated the third, fourth and fifth place candidates."

Note that the election outcome was possibly affected by the lack of proper notice that prevented some owners from voting, and that was a big factor in the ruling.

Going back to what Tim said, members at a meeting are deemed to have waived notice, so you should seek out at least one owner who was NOT at the meeting so they can claim they were harmed by the lack of notice. More than one would be better. Also better to share the costs among several people. Besides the $200 filing fee you may have to hire a legal representative unless you can demonstrate to DBPR's satisfaction that one of the petitioners is knowledgable enough about the facts to argue your side of the case. If you have to hire an attorney it might cost a few thousand dollars (which you stand a good chance of recovering if you win). In the Burnamun case I mentioned above, the Burnamuns were awarded $8,800 in attorney fees and costs. Notice that that case had a lot more moving pieces than a simple "failure to provide adequate notice" case.

I agree with John that the BOD is on shaky ground. However, as Geno noted this needs to be fixed or complaint filed within a certain time frame. That is potentially the most important item you need to keep in mind.

Does not the date of the mailing, versus the date received, kick off the time clock? The OP is busting their chops for 3 days. He just wants to bust their chops.

I'm not even sure what you mean by this.

We are entitled to a 14 day notice and we did not receive that.

How could the notice of the new annual meeting be mailed and not have a postmark?

Also, at your previous questionably noticed annual meeting, when the board left for a "private huddle" to decide how to proceed, anyone else, feel free to correct me if wrong, but that was a violation of FS 720.303:

(2) BOARD MEETINGS.—
(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. Meetings of the board must be open to all members, except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege.

As a first-time HOA board member recently elected, I'm doing my best to not violate the above, but it basically prevents the board from communicating or doing anything coordinated outside of board meetings or conversations conducted via email. i.e. with a 3-person board, 2 or more directors can't meet with a vendor, meet or phone one another to talk about HOA issues, etc. At least that's the impression I get from the above.

When the post office handles a letter, either that letter has a postage machine stamp on it, "suggesting" the date it was sent, or a stamp attached which the post office ink stamps over "cancelling" the stamp (so it can't be reused) which includes the date. That's the post-mark indicating the date the letter was sent.

I'm not sure where you're going with "3rd party". A quorum of the board can't meet to conduct HOA business in secret from the members. Whatever discussion they had about how to proceed should have taken place in front of the members at your annual meeting.

What did it have on the envelope to pay for postage? i.e. a stamp or a postage meter printed stamp? As I said, the latter would include the date the stamp was applied under the postage amount. The latter would be stamp cancelled by the USPS which would include a date. The thing with postage meter printed stamps...just because they printed the postage on the envelope on say Nov 1, doesn't mean it was put into the mail on the 1st. They could have printed the postage on the envelopes and then sat on them for days before handing them over to USPS for delivery.

My understanding of 720.303(2)(a) is that other than discussing proposed or pending litigation with the HOA attorney, a quorum of the board cannot meet in private to conduct HOA business. I guess the question becomes, how is "conduct HOA business" defined?

Is discussing HOA annual meeting & election procedures "conducting HOA business?"

Where is the line drawn, if there is one, between what a quorum of the board can or can't do in private?

Andrew has issues with his BOD and is looking to confront them anyway he can. If not this issue, he will find others.

Oh...I hadn't considered that sort of envelope. My HOA/Management company is too small-time for that. I don't know how you can tell when that was actually sent.

If you received the letter on December 2 then it will have been mailed a few days prior to you receiving. Therefore, for December 14th date it would have been mailed at least 14 days or more prior to the meeting. Also, the “date of notice” which states November 29 is potentially when it was mailed. This was most likely placed in the envelopes due to they have a pre-sort postage stamp on their envelopes. Notice regarding meetings is not when owners receive, but when they are properly mailed to the owners. I would contend they met the 14 day criteria noted in the statute from what you have stated.

If you do not have a specific date and time noted in your governing documents ... then the BOD can determine the meeting timeframe as allowed by the documents and state laws.

Today I heard from some of my residents that they haven't received their ballot. They have tried to contact the property management and that isn't working.

Also one person threw their ballot away because he already voted for the last meeting and thought it didn't apply.

There is a big lack of communication and it doesn't seem like an accident.