Article Courtesy of LEXOLOGY
By Clinton S. Morrell
Published April 13, 2019
Floridians who were of age during the 2000 U.S.
Presidential election know firsthand how controversial close elections,
disputed results, and recounts can be. Disputed homeowners’ association and
condominium association elections can be just as disruptive to the
community. Since community associations are statutorily required to retain
election materials for a period of time, one natural response to a disputed
ballot count is to recount the election materials to determine proper
results. However, arbitration decisions from the Florida Department of
Business and Professional Regulations’ Division of Condominiums, Timeshare
and Mobile Homes (“Division”) cast substantial doubt on whether a community
association, itself, may conduct a recount or correct election errors after
conclusion of the annual meeting except when ordered to do so by the
In Parker v. East Linden Estates Homeowners Association, Inc. (2007), Miller
v. Harbor Isles Condominium Association, Inc. (2010), and Silva v.
Southchase Phase 1A Parcels 12, 14 and 15 Homeowners Association, Inc.
(2015), the Division held that condominiums and homeowners associations may
not conduct election recounts after the annual meeting concludes unless a
procedure is set forth in the association’s governing documents. However, in
the most recent decision addressing the recount issue, Rosenblatt v.
Southshore Falls Homeowners Association, Inc. (2015), the Division held that
since there was no dispute that the originally announced election results
were inaccurate based on two recounts conducted by the association, the
election results as demonstrated by the recounts would control. The Division
in Rosenblatt noted that the association failed to recognize the recount
results because it believed that it was not authorized to do so, and opined
further that “whether true or not,” such belief was reasonable.
Notwithstanding, the Division ordered the association to pay the
petitioner’s attorney’s fees. In other election disputes brought by unit
owners, including Chikovsky, et al. v. Le Lac Property Owners’ Association,
Inc. (2014), the Division reviews the election materials and, if the correct
result materially differs from that announced by the association, the
Division will take the appropriate action to select the correct board
members or redo the election. In fact, in at least one arbitration decision,
Frazier v. Venture Out at Panama City Beach, Inc. (2004), the Division
ordered the association, itself, to conduct a recount and declare the
winners based on the recount results.
Until further guidance is provided by the Division by way of regulations or
arbitration decisions, it appears that a community association, even if it
determines conclusively that its initial election results are inaccurate,
must nonetheless accept the results of the election as announced unless an
affected unit owner timely challenges the election results and the Division
orders an alternate result. Notably, the Association, itself, is not
permitted to file an arbitration petition challenging the election results.
Gulf Island Beach & Tennis Club I Condominium, Inc. v. Lapenna (2003),
Cypress Palms Condominium Association, Inc. (2008).
Since the association may be unable to correct even obvious errors in the
vote count after announcing election results at an annual meeting, unless
authorized by its governing documents, the association should be extremely
careful in conducting the initial vote count and consider multiple counts or
other precautionary measures to ensure an accurate count before announcing
results and adjourning the annual meeting. Having competent counsel attend
and conduct annual meetings and elections can help the association avoid
ballot counting and other mistakes which are far more difficult to correct
after the fact. Associations desiring to allow recounts should review their
governing documents to determine whether authority exists and, if needed,
consult with an attorney regarding requirements to amend the governing
documents to establish recount procedures.