Florida CC&R Voting - Do non-votes count as yes votes?

Is the BOD legally able to say that if they are changing the CC&Rs a member who doesn't send in a vote will be counted as a "Yes" vote for the BOD approving the changes?

Our BOD is sending out the changes with this statement.

Darlene,
If this is written in your documents or stated in some statute, it would certainly be subject to legal challenge. If it is presented by your Board as something the Board decided, and has not incorporated this into your CC&r's, with an amendment, it doesn't appear to be valid.

But in any event, your post indicates this is how the Board is going to consider the contemplated action, legal or not, and they will act accordingly.

I doubt you can isolate this position of the board to apply only to this particular event (to amend your documents). It would have to apply across the Board, unless exceptions were written into the documents.

Best for the Board to stick to the documents as written, and it is understandable it can be difficult to meet some requirements, But, it is what it is, I suspect it has been that way for a while, especially if these onerous requirements have been filled in the past, you can not circumvent the documents.

All that said, it becomes imperative you understand the boards intent. If you perceive the Board is acting just to get the amendment done, you as an owner, are obligated to attend a Board meeting and question their action. Request a legal ruling and get your objection and suggestion entered into the minutes. The Board may not want to entertain your objection but simply ask it be made part of the record and state you would like to record the meeting. I doubt seriously the Board can keep you from recording a meeting (open) unless they make a ruling at the meeting from the chair, and of course that would mean it would have to be entered into the minutes. But, try and understand the Boards position and work for a solution, not just an objection. In reality, the Board can probably push this through and may do just that. If you and others want to challenge, make the right preparations and get your objection in the record, then, go on from there and get legal advice.

Darlene,

The Florida Sunshine Laws do not apply to HOAs. A statement within those laws says so, only applying when a municiple body such as County Building or permitting is involved. 720 is the laws which we follow for HOAs.

Many association count the entire membership when figuring out quorum numbers and votes to pass percentages. This is legal if stated so in the governing documents. If that is the case, then non votes are counted towards the total numbers as yeses. This site has argued this a hundred times but this is done in almost every association that I have been involved in.

As an alternative,many association non votes are given to the Secretary to count as yes or no votes, depending on the reccomendation of the Board. Quorums are achieved that way and amendments are also sometimes done in this manner. It is not cheap to have elections and amendment changes done so this is an alternative to not getting business done because of apathy of the membership and not getting ballots or amendments back. But of course, it must be allowed in the governing docs.

I have never heard of either of these, and they don't make sense to me. Can someone explain, please?

My understanding is that passing an item requires a certain percentage of the body (the quorum present at a meeting, or the eligible voting pool, or the membership), so abstentions and non-votes effectively count with the Nays.

It sounds improper and absurd that the Secretary or the Board could determine this for each case. Of course, it may be legal if specified in the governing documents, but I have never heard of that before now, and it seems to largely defeat the purpose of having a vote.

In our association, votes of the Membership are counted as a percentage of eligible votes -- votes from ineligible homeowners (haven't paid their dues, etc.) are not counted, and ineligible homeowners are not counted in the eligible pool. (If 80% have paid their dues, and 44% of homeowners who paid their dues vote yes, then that counts as a 55% vote in favor.) I thought this was fairly common in HOA's.

Thanks for the correction, Mary. I actually meant to write "44% of all homeowners paid their dues and vote yes". I probably should have written:

If there are 100 members and 80 have paid their dues, and if 44 of those 80 vote yes, than that's a 55% vote in favor.

Also, in our association, a quorum for a meeting is 10% of eligible members in person or by proxy (and if we don't get 10%, then a second meeting can be called for the same purpose, for which the quorum will be 5% in person or by proxy), but a quorum for a vote held by written ballot without a meeting is all eligible members.

Is this a common arrangement?

I don't think we've ever failed to get the 10%, although sometimes we get more proxies than shows.

Do I understand correctly that your association must receive votes from 50% of [members or eligible members] for the results of a mail-in ballot to be effective?

I wrote loosely when I said the quorum in mine is 100% for written ballot without a meeting. Our bylaws specifically state, "The action shall be taken upon the affirmative eligible votes of the required percentage of Members . . ." I take this to mean that if the measure requires a 51% yes vote to succeed, then we must receive yes votes from 51% of all eligible Members in order to pass it on a written ballot with no meeting. That amounts to the same thing, in that votes are counted as percentages of all eligible Members, but it does not require all Member to vote. (Non-votes are effectively counted with the Nays.)

That provision also requires:
• A written ballot must be distributed to every Member entitled to vote. (I take this to mean all current Members.)
• The ballot must set forth the proposed action and allow for both yes and no votes.
• The ballot must specify a reasonable time, within which to return it.
• Several TX Corporation acts are incorporated by reference.
I think this allows for ballots to be mailed in, returned in person, or collected door-to-door. Ballots could be distributed door-to-door in addition to mailing them out, but not in place of a complete mailing to all Members.

I have not seen or heard any objection to going door-to-door to collect ballots or proxies; but thinking about it now, I wonder if that may be an improper electoral procedure. Comments?

I think a consideration for counting the entire eligible Membership as the voting quorum for written ballot, is that when you have a meeting, the Members have the option to attend and discuss the matter together, but not with a written ballot.

Nominations from the floor can be much like a dissenting opinion. They may not allow the opportunity to change anything, unless most of the votes are in person and not by proxy.

There are specific exceptions in our Bylaws and Covenants.
• Directors may only be elected at a properly noticed meeting of the Membership.
• If a special assessment is voted on by written ballot without a meeting, it must receive a 100% unanimous approval of all Members to pass.
o (Special assessments require a 67% supermajority to pass in a properly noticed meeting, but the meeting only requires a 10% quorum in person or by proxy.)

I'll try to answer some of the questions that you all have asked.

First, our By-Laws, CC&Rs and/or any other document to not say that a "non" vote can be counted as a vote for the BOD. The BOD made this up for this vote on changing the CC&Rs. The BOD does not admit that the CC&Rs are expired, so they are just trying to change them without going through the Revitalization Process as stated in the Florida Statutes dealing with expired CC&Rs. There are many steps that must be taken to deal with a Revitalization, so they BOD is just telling the neighborhood that they are rewriting the CC&Rs and getting a vote on the new ones.

Second, there are 10 lots (of the total 93) that were originally written out of the CC&Rs and the owners of those lots have voted since the BOD took over.

Third, our ony common areas are the easements. Most homes have between 2-10 acres and many homes can't be seen at all from the road. Most homeowners want to stay to themselves and not get involved at all.

Fourth, about 14 lots are absentee members who live elsewhere and don't vote on anything.

So you see, there are many issues that make voting difficult. However, Florida Statutes say that in a Revitaliation Process you must follow about 8 different steps to get CC&Rs effective again and they just don't want to go through the process.

I hope that I have answered the questions adequately.