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What is “Cumulative Voting” and Is It Permissible?

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Q: If the ballot sent to every homeowner states you may vote up to five candidates and no more, can you cast all five votes for just one person and have that ballot counted as five votes versus one vote? (S.D., via e-mail)

A: It depends on the provisions of your homeowners’ association’s governing documents. Your question is whether “cumulative voting” in elections of directors is permissible. Under cumulative voting, each member is provided with one vote for each seat open on the board and may split those votes as he or she sees fit, including casting all votes for only one candidate. Cumulative voting gives a member’s vote more weight than if the homeowners’ association does not allow for cumulative voting.

Section 720.306(9)(a) of the Florida Homeowners’ Association Act generally provides that elections of directors must be in accordance with the governing documents of the association. Section 617.0721(5) of the Florida Not For Profit Corporation Act, which also governs Florida homeowners’ associations, provides that the articles of incorporation or the bylaws may provide for cumulative voting; however, cumulative voting is not permitted unless it is expressly authorized in the articles of incorporation. Therefore, cumulative voting in only permissible in your homeowners’ association if its articles of incorporation specifically authorize same.

As a practical matter, few homeowners’ associations adopt cumulative voting. When considering whether to permit cumulative voting, it is recommended that associations first consult with a qualified and experienced community association attorney to discuss its benefits and challenges.

Q: My condominium unit is in an association that is part of a larger master association. The master association is made up of a number of other condominium associations. A question has arisen as to what law applies to the master association. (J.J., via e-mail)

A: Whether the master association is a condominium association governed by Chapter 718, Florida Statutes, the Florida Condominium Act, depends on whether master association’s membership is composed exclusively of condominium unit owners or their elected representatives. If there are single-family homes or non-condominium property within the master association, then it would not be a condominium association governed by Chapter 718.

Since January 1, 1992, the definition of “association” in Section 718.103(2) has been as follows: “means, in addition to any entity responsible for the operation of common elements owned in undivided shares by unit owners, any entity which operates or maintains other real property in which unit owners have use rights, where membership in the entity is composed exclusively of unit owners or their elected or appointed representatives and is a required condition of unit ownership.” The statute was amended to define an association in this manner following an appellate court decision that addressed when a master association is governed by the Florida Condominium Act.

Following the amendment to the statute, the test as to whether an association is a condominium association is based on this constituency test. Therefore, if all of the members of the master association are condominium unit owners, or their representatives, then the master association is a condominium association governed by Chapter 718.

However, there is a recent court case that held that the amendment to the Florida Condominium Act that changed the definition of “association” in 1992 does not apply to master associations which existed before the revision of the statute. As such, if your master association pre-dates 1992, you would need to consult with your legal services provider to determine if the master association is governed by Chapter 718. However, for master associations created after 1992, the statute would apply.

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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