Real Estate Counselor: Electronic voting enables associations to amend outdated governing documents | Opinion

Many South Florida community associations have outdated rules and provisions in their governing documents. These declarations and bylaws that are recorded in local court registries and provided to all buyers prior to purchases were codified by their community’s developer, and they often include problematic stipulations.

Vexingly for associations, the official documents are not easy to fix. Amendments often require a vote of all the unit owners, and sometimes the bylaws demand a minimum approval of two-thirds or even three-quarters of all the owners in order for changes to be implemented.

Many communities have historically never come close to achieving such voter participation levels for any of their member votes. They may have tried in the past to get the vote out in order to effectuate important amendments to address serious impediments, but the turnout still came up short.

Rather than attempting to circumvent the formal amendments, which could expose associations to significant legal liabilities from owners who successfully challenge unrecorded restrictions and modifications in court, some associations are finding a solution by implementing and making effective use of online voting for their owners.

The Florida legislature authorized community associations in the state to implement and use online voting systems in 2015 to conduct votes for board of director elections, amendments and other issues requiring a vote of all the member unit owners. The law requires that the system meets certain requirements, and owners who wish to take part must opt-in and provide written consent to participate.

Community association e-voting systems must provide a method that authenticates owner identity, and board-member ballots must be submitted in a manner that ensures anonymity. That means the system must be able to permanently separate identifying information from each ballot cast, rendering it impossible to link a ballot with a specific owner.

The association must confirm at least 14 days prior to the voting deadline that unit owners are able to log in and cast their vote, and all votes must be able to be authenticated. For annual board member elections, casting an online vote cannot be available prior to the statutorily scheduled timeframe for the election, which could be nullified if this is breached.

Owners must receive a receipt, typically via email, specifying the date and time of their submission as well as their identification information, and the system must store an official record of the votes cast as well as the date and time for each ballot. These election records must be maintained and accessible for purposes of a recount, inspection or review.

Owners who cast their vote online are counted as being in attendance and submitting an official ballot for all required quorums as well as the minimum thresholds for official amendments. Associations must still hold their annual meeting to collect paper ballots from those who choose to opt-out of e-voting or not participate in it.

The inability for some community associations to amend and update their governing documents has prevented them from approving and implementing sorely needed property improvements and renovations. By deploying an online voting system and focusing their efforts on enabling their owners who wish to use it to do so, associations would be able to address this issue once and for all via an amendment that lowers the voting threshold for all future changes to the governing documents. For example, by changing the minimum requirement for passage of amendments from two-thirds of all the unit owners to a simple majority of all ballots cast, associations would be better able to ratify important future changes.

There are several companies offering e-voting systems and online applications for community associations, which should consult with qualified legal counsel to ensure the offerings being considered meet with all the criteria required under Florida law. By vetting their options and implementing an effective e-voting system, savvy association boards of directors can enable their communities to make important changes to their documents while also significantly increasing the turnout for all their future votes and elections.

Shari Wald Garrett is a shareholder with the South Florida law firm of Siegfried Rivera who focuses on community association law. She is based at the firm’s Coral Gables office and is a regular contributor to its Newsroom blog at www.SiegfriedRivera.com/blog. The firm also maintains offices in Broward and Palm Beach counties, and its attorneys focus on real estate, construction, community association and insurance law. www.SiegfriedRivera.com, SGarrett@SiegfriedRivera.com, 305-442-3334.