Around this time every year, most of our Homeowners Association (HOA) clients are readying themselves for their annual meeting, including the election of the next year’s Board members.  Under current Florida law, there is minimal statutory guidance for Homeowners Associations as to how an HOA is required to conduct their election of Board members.  This stands in stark contrast to the rules governing the election of Board members in a condominium association, which are heavily regulated by statute, as well as state administrative agencies.  For most HOAs, the association is simply to follow the election requirements as set forth in the association’s governing documents, within minimal statutory guidelines. 

However, as one might guess, that is often easier said than done.  Each year, our firm comes across HOAs that, while good-intentioned, may have substantially revised their elections process (sometimes to make it easier for absentee owners or “snowbirds” to participate) without properly updating their governing documents.  A common change that is made is instituting an elections procedure wherein the association mails a ballot to each owner to then mail back to the association.  While a version of this is the statutory election method for condominium associations, and a version of this may be used for absentee ballots for governmental elections, most Homeowners Association governing documents do not provide for elections by this “absentee ballot” method.  As such, it has been our experience that elections conducted in this way within many HOAs are challengeable.  It is important to note, however, that the elections procedures in the governing documents for most HOAs do allow owners to participate in elections by proxy.    

It is important for your Homeowners Association to periodically review its elections procedures with legal counsel to avoid creating significant legal challenges.  Moreover, to the extent that your HOA anticipates making changes to policy and procedure, including regarding an election, it’s important to have legal counsel review existing guidance in your association’s governing documents to avoid the adventure that may result if an owner challenges the process.