Recent Changes to the Florida Statutes Governing Homeowners Associations

Johnson_Monica

Monica Johnson

Does your homeowners association require nominations from the floor for an election to the board of directors? Recent changes to the Florida Statutes governing homeowners associations have given some associations the right to forego accepting nominations from the floor during an election of board members.  However, your association should analyze its governing documents for compliance with the statutory requirements prior to refusing to accept nominations from the floor.        

Effective July 1, 2013, the legislature amended section 720.306(9)(a), Florida Statutes, to add the following language:

Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. …  [A] member may nominate himself or herself as a candidate for the board at a meeting where the election is to be held; provided, however, that if the election process allows candidates to be nominated in advance of the meeting, the association is not required to allow nominations at the meeting.

(Emphasis added.) In interpreting this statute in conjunction with an association’s governing documents, associations are frequently advised to be cautious and allow members to nominate themselves as candidates for the board at the meeting where the election is to be held.  To the extent that your governing documents require nominations from the floor by stating that nominations “shall” be taken or accepted from the floor, your association must accept them.

Associations have questioned how to proceed if the language in their documents is not mandatory, such as “shall”, but optional, such as “may”. If your association’s election process allows for nominations in advance of the meeting and your governing documents provide that nominations “may also be accepted from the floor at the annual meeting, your association can, but is not required to, accept nominations from the floor.

The Department of Business and Professional Regulation, which oversees challenges to an association’s election process, issued a decision on this particular issue in Villages of Bloomingdale I Homeowners Ass’n, Inc. v. Curtis Brown, Case No. 14-00-3182 (Summary Final Order, Sept. 5, 2014).  In Villages of Bloomingdale I Homeowners Ass’n, Inc., the association’s bylaws provided that nominations shall be made by a nominating committee and nominations may also be made from the floor at the annual meeting. Id. at *4.  The arbitrator interpreted this provision in conjunction with section 720.306(9)(a), Florida Statutes, as not requiring floor nominations as long as the association allows every eligible, interested person to nominate himself or herself as a candidate in advance of the meeting, such as by giving its members an opportunity to submit notice of their intent to be a candidate and accepting those eligible members as candidates. Id. Otherwise, if the association does not allow every eligible, interested person to nominate himself or herself as a candidate in advance of the meeting, the association must allow any member to nominate himself or herself from the floor as a candidate for the board at the meeting. Id.

Accepting nominations from the floor for an election to the board of directors when they are not required can be unnecessarily burdensome for an association. Consequently, each association should review their election process prior to their annual meeting to determine whether the association is required to accept nominations from the floor.  If you would like our assistance in analyzing your association’s governing documents to determine whether your association may forego accepting floor nominations, please contact our office.