Recounts: Difficulties Correcting HOA and Condo Election Ballot Count Errors After the Annual Meeting

Morrell.Clinton_thumb_@1xFloridians who were of age during the 2000 U.S. Presidential election know firsthand how controversial close elections, disputed results, and recounts can be. Disputed homeowners’ association and condominium association elections can be just as disruptive to the community. Since community associations are statutorily required to retain election materials for a period of time, one natural response to a disputed ballot count is to recount the election materials to determine proper results. However, arbitration decisions from the Florida Department of Business and Professional Regulations’ Division of Condominiums, Timeshare and Mobile Homes (“Division”) cast substantial doubt on whether a community association, itself, may conduct a recount or correct election errors after conclusion of the annual meeting except when ordered to do so by the Division.

In Parker v. East Linden Estates Homeowners Association, Inc. (2007), Miller v. Harbor Isles Condominium Association, Inc. (2010), and Silva v. Southchase Phase 1A Parcels 12, 14 and 15 Homeowners Association, Inc. (2015), the Division held that condominiums and homeowners associations may not conduct election recounts after the annual meeting concludes unless a procedure is set forth in the association’s governing documents. However, in the most recent decision addressing the recount issue, Rosenblatt v. Southshore Falls Homeowners Association, Inc. (2015), the Division held that since there was no dispute that the originally announced election results were inaccurate based on two recounts conducted by the association, the election results as demonstrated by the recounts would control. The Division in Rosenblatt noted that the association failed to recognize the recount results because it believed that it was not authorized to do so, and opined further that “whether true or not,” such belief was reasonable. Notwithstanding, the Division ordered the association to pay the petitioner’s attorney’s fees. In other election disputes brought by unit owners, including Chikovsky, et al. v. Le Lac Property Owners’ Association, Inc. (2014), the Division reviews the election materials and, if the correct result materially differs from that announced by the association, the Division will take the appropriate action to select the correct board members or redo the election. In fact, in at least one arbitration decision, Frazier v. Venture Out at Panama City Beach, Inc. (2004), the Division ordered the association, itself, to conduct a recount and declare the winners based on the recount results.

Until further guidance is provided by the Division by way of regulations or arbitration decisions, it appears that a community association, even if it determines conclusively that its initial election results are inaccurate, must nonetheless accept the results of the election as announced unless an affected unit owner timely challenges the election results and the Division orders an alternate result. Notably, the Association, itself, is not permitted to file an arbitration petition challenging the election results. Gulf Island Beach & Tennis Club I Condominium, Inc. v. Lapenna (2003), Cypress Palms Condominium Association, Inc. (2008).

Since the association may be unable to correct even obvious errors in the vote count after announcing election results at an annual meeting, unless authorized by its governing documents, the association should be extremely careful in conducting the initial vote count and consider multiple counts or other precautionary measures to ensure an accurate count before announcing results and adjourning the annual meeting. Having competent counsel attend and conduct annual meetings and elections can help the association avoid ballot counting and other mistakes which are far more difficult to correct after the fact. Associations desiring to allow recounts should review their governing documents to determine whether authority exists and, if needed, consult with an attorney regarding requirements to amend the governing documents to establish recount procedures.

If you have any questions, please contact Clinton S. Morrell by email at cmorrell@shumaker.com or by phone at (813) 227-2224.

An attorney in the firm’s Litigation practice group, Clinton practices primarily in the areas of homeowners association (HOA) and condominium law. He also has experience in other practice areas, including general commercial litigation and construction defect claims.

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