Condominium Board Member Elections and the Importance of the Notice of Intent to be a Candidate
As most residents living in Florida condominium associations know, Directors are typically elected to the Board by the Members of the association. The election process, which is governed in part by Section 718.112(2)(d), Florida Statutes, includes many requirements and deadlines that must be followed in order for the election of new Directors to be valid.
One of the requirements of this statutory election process falls upon the Members who wish to be candidates in the upcoming election. The statute provides that any Unit Owner or other eligible person who wants to be a candidate for the Board of Directors must give written notice of their intent to be a candidate to the condominium association at least forty (40) days before the scheduled election. This is commonly referred to as a “Notice of Intent to Run”, or “Notice of Intent to be a Candidate.” Members can provide this notice to the condominium association by certified mail, return receipt requested, by personal delivery, by regular U.S. mail, by facsimile, by telegram, or by any other method of delivery. However, it is important to note that this notice is only effective when received by the association (not when sent by the Member). It is also important for association Members, current Directors, Officers, and managers alike to understand that, because this 40 day period is required by law, it cannot be altered by the association for any purpose, regardless of how reasonable the circumstances may seem. If a Unit Owner submits his/her Notice of Intent to be a Candidate 39 days before the schedule election, it will not be valid, and the Unit Owner will not be able to be a candidate for that particular election.
Depending on the number of Notices of Intent the association receives, an interesting situation can arise. What happens if there are three seats on the Board of Directors that need to be filled in the next election, and only two Members of the association timely submit their Notice of Intent to be a Candidate? First, an election is not even necessary – Section 718.112(2)(d) provides that an election is not required if the number of vacancies equals or exceeds the number of Candidates who have timely submitted their Notice of Intent to be a Candidate to the association. Secondly, the two Candidates will automatically become Directors of the Board upon the adjournment of the annual meeting at which the election was scheduled to be held.
It makes sense that the only two valid Candidates would automatically become Members of the Board, but what happens to the third seat that remains unfilled? Section 718.112(2)(d) also provides that, unless the association’s bylaws provide otherwise, “any remaining vacancies shall be filled by the affirmative vote of the majority of the directors making up the newly constituted board even if the directors constitute less than a quorum or there is only one director.” Typically, associations will schedule and duly notice an organizational Board meeting to be held directly following the annual Member’s meeting (which we believe is good general practice). At this Board meeting, the third seat that remains vacant can be filled by a vote of the newly constituted Board.
A further wrinkle can appear when the election to be held is a statutorily mandated turnover election, required and conducted pursuant to Section 718.301, Florida Statutes, whereby the non-developer Members “are entitled to elect at least a majority” of the Members of the association’s Board of Directors. Say, for instance, the non-developer members are entitled to elect two Directors on a three-person Board, while the Developer is entitled to select the final “minority Director.” Further, suppose the association receives only one Notice of Intent to be a Candidate for the two available seats. Section 718.301 provides that the turnover election “shall proceed as provided in Section 718.112(2)(d)”, but does that mean the Developer appointed minority Director is able to vote with the other newly appointed Director to fill the final vacant seat? In our opinion, yes; while the Developer is in essence casting a vote for a Director which the non-Developer Members are entitled to elect, there are no other Members willing to be candidates in this scenario, and unless the association’s Bylaws provide otherwise, Section 718.112(2)(d) (which is incorporated into Section 718.301) clearly provides the method for resolving the situation.
While the above is an example of how a typical election scenario might play out, it is always best to check with your association’s legal counsel to review your association’s specific circumstances, governing documents and relevant Florida law to determine the correct path forward for your association.
This Blog was prepared by Adam W. Carls, Esq. of Taylor & Carls, P.A. The information contained herein should not be acted upon without professional legal advice. The opinions expressed herein are as of the date hereof, and this law firm undertakes no obligation to advise of subsequent changes in the law.
The firm of Taylor & Carls, P.A., with offices located in the Orlando area, Tampa – St. Petersburg area, and Northeast Florida (Jacksonville/St. Augustine/Palm Coast), was founded in 1981 and has practiced in the area of community association law since that date. The firm can be reached Toll Free at 1-800-395-6235.
 The election of Directors by non-developer Members of the Association depends on many factors, including whether control of the Association has been “turned over” from the Developer to non-developer Members of the Association.
 Even though an election is unnecessary in this situation, the annual meeting must still be held for the purpose of announcing the new Directors and conducting any other Association business.