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Owners Cannot Use E-Mail to Vote

Q:        My condominium is taking a vote to authorize renovations to our lobby. Could the board e-mail the owners for their votes instead of holding a meeting? Are owners allowed to vote using e-mail? (S.B. via e-mail)

A:        No. Section 718.112(2)(d)5 of the Florida Condominium Act states that most unit owner voting must take place at a duly noticed members meeting. There are certain exceptions to this requirement which are not relevant to your inquiry. In the event that unit owners cannot attend a meeting where a vote is being held, unit owners are permitted to vote by limited proxy (except in the election of directors, where secret ballots must be used).

The Condominium Act also provides a procedure to conduct elections and conduct other votes through use of an online voting system. This is basically a website administered by a third part vendor who contracts with the association. The online system is subject to certain technological requirements, such as the ability to authenticate the unit owner’s identity, and the ability to store electronic votes, accessible for purposes of recount, inspection, and review.

In order for an association to implement electronic voting, the board of directors must authorize electronic voting through a board resolution, which requires 14 days pre-meeting notice to be effective. The resolution must address how to provide notice of the availability of electronic voting, as well as establish reasonable procedures and deadlines for unit owners to give written consent for electronic voting, and to opt out of online voting, after giving consent. Before unit owners can utilize electronic voting, they must provide written consent.

Board members are similarly prohibited from voting by e-mail under the statute. Section 718.112(2)(c) of the Florida Condominium Act, states that “members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail.”

Q:        My condominium association is in the process of amending the condominium documents. I, along with a number of other owners, wish to cast our votes by secret ballot, as some of the issues are controversial. We have been told that the board will not allow us to vote by secret ballot and are requiring us to either use limited proxies or signed ballots at the meeting. Is this legal? (S.O. via e-mail)

A:        Other than for the election of directors, which must be by secret ballot using the two-envelope method described in Section 718.112(2)(d) of the Florida Condominium Act, the statute does not address the use of secret ballots in association voting. Owners who do not physically attend a member meeting may generally only vote by limited proxy. Limited proxies by their nature are not secret as they must be signed by the unit owner to be legally valid.

There may be parliamentary procedures or bylaw provisions that could be utilized to require the use of secret ballots for those who vote in person at the meeting. However, in my experience, the better practice is for all members to vote either by signed limited proxy or signed meeting ballots, so that the association can verify how members cast their vote if there is ever a question. That is because while many people send in proxies before a meeting, they also attend in person. The use of signed meeting ballots substantially reduces the risk of someone voting twice, since the vote applicable to each unit can be tracked. Conversely, if secret ballots are passed out without rigorous cross-checking, or left at a registration table, it is nearly impossible to detect duplicate votes, which most often occur due to error or confusion in the registration process, as opposed to malicious intent.

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

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