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Non-Vote Can Be A “No” Vote

Q:        I am on the board for our condominium complex. Many owners have requested getting lights for our swimming pool so that they may use it longer in the winter months. We have the funds for this and the professional drawing for the layout. We are told that we need a 75% owner vote, and that an owner who does not vote is casting a “no” vote. It is so hard to even get a quorum at our meetings, let alone three-fourths of the owners to vote on anything. Why should the votes of people who just don’t care and never send in their proxy be a “no” vote? It would be so much better if the only votes that are counted are the ones that the owners send/bring in their proxies for. (C.D. via e-mail)

A:        Voter apathy is a problem in both condominium and homeowners’ associations.

I assume that you have been advised that adding lighting to the swimming pool is a “material alteration of or substantial addition to condominium common elements or association real property,” which it likely is. I also assume that either your declaration of condominium is silent on this issue (in which case you probably default to the statutory requirement for 75% approval), or this is the stated level of approval in your documents.

In general, the statutes default to super-majority requirements based upon all members when significant actions are being considered, such as material alterations, acquisition of title to real property, and entering into certain types of recreational agreements. On the other hand, the statutes generally default to calculating votes based upon the number of owners who actually vote for “procedural” matters, such as certain reserve questions, and the waiver of year-end financial reporting requirements.

When I draft governing documents for a client, I always recommend that all votes (with a few limited exceptions) be calculated based upon those who actually vote at a meeting, in person or by proxy. The reasons seem obvious. Every owner is entitled to legal notice of all meetings, and can vote “no” by simply doing so. It is as easy as filling out a very short form (the proxy) and sending it to the association (scanned e-mails are legally permissible).

Therefore, it is very important any time a particular vote is being taken to closely review the applicable statute and/or relevant provisions of the governing documents to ascertain the legally required vote. For example, an action requiring “a two-thirds vote” would typically be interpreted to required two-thirds of all voting interests (there is usually one voting interest per unit or parcel). One of the most common flaws I see in governing documents written by attorneys inexperienced in this field of law is the creation of ambiguity on the required vote for a particular action.

To state most clearly the concept of votes being calculated based upon those who vote, a proper clause would, in your situation for example, say:  “This action may be approved by 75% of the voting interests, present in person or by proxy, and voting at a duly noticed meeting of the association.”

So the first order of business is to determine the required vote for a particular action. The Florida Supreme Court has ruled that such conclusions can only be rendered by a Florida-licensed attorney. If your vote is based upon participation by all voters, then a “non-vote” is essentially a “no” vote. Conversely, if the results are calculated based upon those who actually vote, then a “non-vote” simply is not counted, and (assuming a quorum is established), the result is calculated based upon those who vote on the measure in person or by proxy.

If you have provisions in your condominium documents which require voting based upon the entire membership, you should discuss amending them with your association’s legal counsel.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@bplegal.com. Past editions may be viewed at floridacondohoalawblog.com

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