02-03-2025
Can condo board scrap election results just because several residents didn't sign ballot?
Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Our recent election was stopped by the board and the association's attorney because "too many election packages" were being rejected due to owners' failure to sign the exterior of the outside envelope. We have 65 units; it was reported that we had 53 responses: 35 were OK and 18 had no owners' signature. I believe we only needed 13 clean ballots to have a legal election.
The board president, who was attending by Zoom from Canada, said that we needed to redo the election because those 18 owners needed a second chance. While the meeting was still going on some of those 18 were called and asked to come to meeting and amend their ballot package. After realizing that the vast majority of the 18 were not available to correct their ballot they told us that there would be a new election.
I am one of the four candidates for two open seats, and I am under the impression that there are no "do overs" for ballot packages missing the owners' signature. Information from ballots and envelopes are being kept secret from all the owners except for the board members. Signed, K.W.
Dear K.W.,
I cannot think of a legitimate reason that a properly conducted election could be abandoned because more envelopes were invalid than the board preferred. I think you have excellent grounds to challenge this decision, but you need to act quickly.
The Condominium Act and Florida's Administrative Code contains very detailed election procedures and provides that if an outer envelope is not signed by the voter it must be disregarded. Such an envelope would not count towards the mandatory 20% participation requirement. But, based on your numbers, there were more than enough valid ballots to conduct a legal election, and the decision to abandon the election was improper.
The only reason I can think of that such a decision would be valid is if for some reason the voting package gave owners incorrect instructions, leading to owners failing to sign their envelopes. But otherwise, the simple fact that owners don't follow directions is not a reason for a do-over.
You have only 60 days to file an election complaint, and so you either need to contact the Division of Condominiums or file a petition for arbitration (after sending the required pre-arbitration demand) right away—particularly because the board could improperly discard the original election materials (that would create an entirely different problem for them, but it would also prevent the original results from being counted). I would do one or the other as soon as possible—an attorney can help you decide the pros and cons of both options.
Question: I live in a condominium, and the unit above me was bought, remodeled and flipped without the owner ever living in the unit. As soon as a new owner bought the flipped property I noticed the noise was so bad that I brought it to the attention of the new owner and board of directors. It was determined that the incorrect underlayment was approved by the Architectural Review Committee (ARC) and installed by the flipper.
The board simply said they would do nothing and on advice of counsel would not speak about it. What can I do? Signed, D.R.
Dear D.R.,
The Board has a problem here. You say that the approved underlayment was 'incorrect,' and so I'm going to assume that there was some existing specification that was not followed or was ignored by the ARC, and not just that there are no guidelines of any kind.
If the ARC just made a mistake and approved a flooring installation that should never have been approved, they could very well have liability to the new owner, but that also doesn't mean that the violation is automatically grandfathered, particularly because it is creating an active nuisance.
The Condominium Act, at Section 718.303, Fla. Stat., provides that every owner is governed by the statute and the governing documents, and that any owner can bring an action against any other owner to enforce those documents. That would include any nuisance provisions, as well as any flooring guidelines that might be contained in the declaration.
I agree that the association itself would have a difficult time pursuing this owner after they gave the owner permission to install the flooring. However, that does not necessarily prevent you from bringing your own action, particularly one based on the nuisance caused by the excessive noise (I am assuming that the noise is in fact excessive, but that's something that would require sound testing and some detailed analysis of the types of noises you are experiencing). What would happen is that you would sue the neighbor, and then the neighbor would likely bring in the association, arguing that they detrimentally relied on the association's approval of the flooring, and that if they are obligated to remove or modify the flooring, the association should be responsible for the cost.
The association has created a complicated dispute, but that shouldn't leave you without any options. I recommend consulting with an attorney so they can advise you of your rights and potentially bring a lawsuit to correct the nuisance.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer's Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@ Please be sure to include your location.
This article originally appeared on Palm Beach Post: Can condominium board require election do-over when vote was valid?
