When Should A Condo Election Be Voided?
By Gary Poliakoff, SunSentinal.com, July 11, 2012
On or about December 18, 1992, a condominium association mailed its first notice of the 1993 annual meeting, indicating that the meeting would be held on Saturday, February 20, 1993. On January 19, 1993, the association sent the second notice of meeting. The notice contained a new date for the meeting- Tuesday, February 18, 1993. The second notice listed nine candidates, with instructions to vote for up to six. Subsequent to the notice being mailed, one of the candidates advised the manager that her name was listed in error and requested that her name be withdrawn from the ballot.
It is unclear whether anyone was advised that the individual requested that her name be removed. What is known is that there were 125 ballots, 128 outside envelopes and that 126 ballots were counted. One unit owner did not receive a notice or ballot. Instead, the holder of the first mortgage on his unit received a ballot and cast the vote for the unit.
A petition for arbitration was filed alleging that, due to the number of violations, the election should be nullified and a new election ordered. It is worth noting that under the administrative rules [Chapter 61B-23, Fla. Admin. Code] there are three situations that in and of themselves would render an election null and void. They are:
1- Rule 61B-23.0021(4) …Failure to follow the procedures for giving the first notice of the date of the election shall require the association to conduct a new election, if the election has been conducted…
2- Rule 61B-23.0021(7) …The failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include the information within the time required by this rule…
3- Rule 61B-23.0021(9) … The failure of the written ballot to indicate the name of each eligible person shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include a revised ballot with the names of all eligible persons within the time required by this rule…
Given that none of the above noted incidents occurred, there is no reason in the rules to nullify the election. However, might there be other conditions that could result in an election being voided and a new election ordered?
In answering the inquiry and, thus, determining whether the election should be voided, the arbitrator relied upon a Florida Supreme Court case- Boardman v Esteva, 323 So 2nd 259, (Fla. 1959) in which the Court stated “[A] fundamental inquiry should be whether or not the irregularity complained of has prevent a full, fair and free expression of the public will.”
What about the bank’s voting a unit it did not hold title to? Here the arbitrator found that the vote cast would not change the election result, thus, the violation, standing alone, is not sufficient to invalidate the election.
What impact was caused by the failure to remove the name of a candidate who claimed her name was included in error? Did the presence of her name affect the fundamental and fairness of the election? The individual did receive 65 votes. And what about the change of the election meeting date in the second notice? Or the fact that there were 128 outside envelopes, but only 126 counted?
Taken as a whole, there were just too many irregularities to be ignored. The arbitrator voided the election and ordered that a new election be held.
As I leave for vacation, I respectfully note that in my absence, Lisa Magill, Esq. will be writing a blog on the day I normally do.
Speak with you in August, 2012. Have a good summer!