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Electronic Voting in Condos and HOA’s Poses Practical Obstacles

November 25th, 2015

Posted in Condominium & Homeowner Association Law

If you are reading this, then you are likely aware that the Florida Legislature recently passed laws authorizing electronic voting for condominium and homeowners’ associations. Specifically, the legislature passed Sections 718.128 (for condominiums) and 720.317 (for homeowners’ associations) of the Florida Statutes which became effective on July 1, 2015 and provided that an association may conduct elections and other votes through an “Internet-based online voting system.” Prior to implementing such a system, the board must pass a detailed resolution and the members must consent in writing. Although the legislatures’ action in permitting voting through a mechanism that comports with our digital age is commendable, the new laws raise some practical concerns and therefore community associations should seek advice from legal counsel before implementing an internet-based voting system.


One practical consideration is it may not be worth investing the effort and funds necessary to implement an internet-based voting system unless the Board is relatively certain that the vast majority of the membership (and hopefully the entire membership) would be willing to provide their written consent to the process. Otherwise, the association would likely be required to hold a “traditional” meeting in conjunction with the internet-based system so that those who have not consented will still be afforded the opportunity to vote. If the association is required to hold a traditional meeting for those who have not provided written consent, then it would not appear to be practical to complicate the process by using an internet-based system in conjunction with the traditional meeting (especially if proxies are permitted). In addition, while the election procedures for condominium associations are relatively uniform to the extent that they are largely prescribed by statute, elections for homeowners’ associations are established by the governing documents and therefore vary from one association to another. Accordingly, it would be important to review the procedure offered by the internet-based system with the assistance of legal counsel to ensure that they comport with the process required by the association’s governing documents. Further, it is uncertain whether an internet-based voting system provider will be willing to customize its system to meet the requirements of any particular association’s election or voting procedures (and if so, at what cost?)

 

Another practical concern involves voter anonymity. For condominium associations, elections must be conducted by “secret” ballot so that the person casting the ballot cannot be identified. Although the Homeowners’ Association Act does not require secret balloting for elections (though the governing documents might), the new law arguably requires an internet-based election to be secret. In either case, it would appear that someone with the requisite technical expertise (or perhaps the service provider) could be able to ascertain the origin of the vote if there was a sufficient incentive to do so.

 
Although an internet-based voting system has the potential to increase member participation, as the foregoing hopefully demonstrates, it is not without risk. Of course, it would certainly be unfortunate if an important amendment were subsequently invalidated due to a defect in the software or procedure. Accordingly, if your association is considering implementing an internet-based voting system, you are encouraged to contact an experienced community association law attorney to help you navigate that process and ensure that the system comports with the association’s governing documents.

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