Question: The bylaws of our condominium association specify that the board of Directors shall be comprised of not less than five nor more than seven members. Six members filed their applications for candidacy by the required deadline (40 days before the annual meeting). One of the members subsequently sent an email requesting that their application be withdrawn. Upon learning at our regular board meeting, held four weeks prior to the annual meeting, that there were only five candidates and would thus be no need for an election, this member verbally requested to have their application re-instated. Can this member be seated on the new board at the annual meeting? R.S. via e-mail
Answer: No. A candidate for the election, who has submitted their written notice of intent to run for the board by the deadline, may withdraw from the election by sending the association a written statement to that effect. The e-mail sent by the candidate in question does constitute a “writing” and the association should implement that withdrawal upon receipt. Since the self-nomination deadline has passed, and the withdrawal takes effect upon receipt, the candidate does not have the right to reconsider their withdrawal. Based on the facts you have provided, there is no need for an election.
If your association receives the withdrawal notice before the ballot package is sent out, the second notice of annual meeting should be revised before mailing since there will be no election. However, if the association receives the notice of withdrawal after the ballot package is sent out, the association should send out a supplemental notice to the owners confirming that there will be no election as a result of the recent withdrawal by one of the candidates.
You should also ask your association’s attorney about the proper size of your board. I almost never include a range of permissible board members in the governing documents I draft. Instead, I prefer the bylaws to establish a specific, non-fluctuating number of directors. The Florida Condominium Act states that the size of the board must be specified in the bylaws. If the bylaws fail to set a size, the default number of five directors is imposed by the statute. The state agency which arbitrates condominium election disputes has ruled that this type of bylaw language, similar to what you have noted (5 to 7 directors), results in a default of five directors if the number is not set in advance of the election. Their rationale is that you can’t set the size of the board at the membership meeting where the election occurs because you have to know how many seats are open to prepare the ballots.