Most election problems are not close calls. They are the same eight or nine errors, made in the same order, by boards that were trying to be efficient. What follows ranks them by how often they happen in Southwest Florida communities and how bad each one is, says plainly whether it is fatal or curable, and gives the first move when it is discovered. The single most useful habit is to treat discovery as a legal event rather than an administrative one.
The ranking at a glance
Frequency is a practice observation rather than a statistic. Severity is a legal judgment. Read the two columns together: the most dangerous errors are the frequent ones that are also fatal.
| Mistake | How often | Condominium / cooperative | HOA | Fatal or curable |
|---|---|---|---|---|
| Notice sent outside the statutory window | Very common | Fatal to that election | Fatal if the documents or § 720.306(5) floor is missed | Fatal once the meeting is held; curable only by rescheduling |
| Missing affidavit of mailing | Very common | Serious proof problem | Depends on documents | Curable in advance, not after a challenge |
| Ballots separated from outer envelopes before verification | Common | Usually fatal | Depends on the method used | Fatal once the envelopes are gone |
| Board members or candidates counting ballots | Common | Serious defect | Serious defect | Curable if caught before counting; fatal after |
| Counting in private or after adjournment | Common | Fatal | Serious defect | Fatal; the count must be redone publicly, which is rarely possible |
| Ineligible candidate left on the ballot | Common | Depends on the margin | Depends on the margin | Curable before mailing; usually fatal after |
| Proxies used to elect directors | Occasional | Fatal; proxies are prohibited | Permitted unless documents say otherwise | Fatal in a condominium or cooperative |
| Candidate information sheet withheld or edited | Occasional | Serious defect | Not statutory | Curable only by re-mailing |
| Votes accepted from suspended or ineligible voters | Occasional | Depends on the margin | Depends on the margin | Curable only if the count can be corrected |
| Ballots and envelopes discarded early | Common | Records violation | Records violation | Not curable; the records are gone |
One theme runs through the fatal column. An election defect is fatal when it destroys the evidence needed to show the result was correct. Notice defects destroy proof that owners had a chance to participate. Envelope defects destroy proof of who voted. Private counting destroys proof of what the ballots said. Everything else is negotiable.
Notice defects
In a condominium the windows are fixed: first notice at least 60 days before the election, second notice with the ballot not less than 14 nor more than 34 days before, annual meeting notice at least 14 days before and posted 14 continuous days. § 718.112(2)(d)4. and 5.a. A cooperative follows the same pattern under § 719.106(1)(d). In an HOA the schedule comes from the governing documents, with a floor of 14 days of actual notice under § 720.306(5).
The defects that recur: the first notice sent 58 days out because a holiday weekend intervened; the second notice mailed at 35 days, one day early, which is as defective as one day late; an owner list that omitted units acquired in the last quarter; notice posted for 13 days because maintenance took the sign down to paint.
What to do the moment you find it. Before the meeting, reschedule. Do not send a corrective notice and hold the meeting anyway. After the meeting, stop seating anyone and call counsel that day. A board that proceeds on a known notice defect converts a procedural problem into a fiduciary one, and the owner who raises it later will have the board's own minutes as proof the board knew.
The affidavit of mailing belongs in this section because it is the proof the notice was given. An officer, the manager, or whoever gives the notice must provide an affidavit or a United States Postal Service certificate of mailing for the official records. Boards skip it, then cannot prove a timely mailing two years later. Our guide to meeting notices and agendas sets out what the affidavit should say.
Envelope handling and the count
The condominium envelope procedure comes from the Division's rule rather than from the statute, which is why it is so often treated as optional. It is not. Under Fla. Admin. Code R. 61B-23.0021 the ballot goes in a plain inner envelope with no markings, the inner envelope goes in an outer envelope bearing the voter's name, the unit being voted and a signature line, and the outer envelope is checked against the list of qualified voters before anything is opened.
- Verification before separation. An outer envelope not signed by the eligible voter is marked "Disregarded" and the ballot inside is not counted. That determination can only be made while the ballot is still inside the envelope it arrived in.
- Who verifies. The board may designate an impartial committee to verify in advance. Current board members, officers, candidates and their spouses are excluded from that committee.
- Where the count happens. Ballots are opened and counted at the duly called meeting, in the presence of the unit owners in attendance, regardless of whether a quorum is present.
- The 20 percent floor. At least 20 percent of eligible voters must cast a ballot for a valid condominium or cooperative election. This is not a quorum requirement and it is not satisfied by attendance.
- Election monitors. Fifteen percent of the total voting interests, or six unit owners, whichever is greater, may petition the Ombudsman to appoint an election monitor, and the association pays the cost. § 718.5012(10).
What to do the moment you find it. If ballots have been separated from their envelopes without verification, stop. Do not continue counting, do not announce a result, and preserve everything exactly where it sits, including the discarded envelopes if they have not left the room. Then call counsel. Sometimes the envelopes can still be matched; more often they cannot, and the association is choosing between running the election again voluntarily and being ordered to.
Who may count, and where
Two related failures. The first is a board member or a candidate counting ballots. The rule excludes current board members, officers, candidates for the board and their spouses from the impartial committee, and the reason is obvious enough that an owner does not need a lawyer to raise it. The second is counting in private, which usually happens because the manager wanted the result ready to announce.
Neither is curable after the fact by recounting in public, because the ballots have already been handled. If the defect is caught before counting begins, the fix is simple: seat a committee that qualifies, in the room, and count in front of the owners present. If it is caught afterward, the association is in a challenge whether or not anyone has filed yet.
HOAs are not off the hook. Chapter 720 does not impose the envelope machinery, but the governing documents almost always describe how votes are collected and counted, and a board that departs from its own documents has the same problem in a different forum. An HOA that wants condominium-grade protection can adopt the same procedure by rule, and many should.
Proxies, information sheets and ineligible voters
- Proxies to elect directors. Prohibited in a condominium and in a cooperative. A proxy vote counted toward a director election is a fatal defect, and no bylaw or owner vote can authorize it. Proxies remain available for other business at the same meeting, which is precisely why the mistake happens: the limited proxy for a reserve waiver and the ballot arrive in the same envelope. In an HOA proxies may be used unless the governing documents say otherwise. § 720.306(8).
- Candidate information sheets. A condominium candidate may furnish a sheet no larger than 8 1/2 by 11 inches at least 35 days before the election, and on request it must be included with the mailing. The association is not liable for its contents. Withholding a sheet because the board disagrees with it, or reformatting it, is a defect that can only be cured by re-mailing.
- Suspended and ineligible voters. A condominium may suspend voting rights only where an owner is more than $1,000 and more than 90 days delinquent and the suspension was approved at a properly noticed board meeting. § 718.303(5), (6). An HOA may suspend where the member is more than 90 days delinquent, with board approval and written notice. § 720.305(4). Suspensions applied without that approval are invalid, and votes refused on that basis are votes wrongly excluded.
- Ineligible candidates on the ballot. Whether this is fatal usually turns on the margin. If the ineligible candidate did not win and the outcome could not have changed, the association may survive it. If the ineligible candidate won, expect to run the election again.
The margin analysis is the one place in election law where boards get some relief, and it is not a place to be optimistic. Do the arithmetic honestly, write it down, and let counsel decide. Our separate discussions of condominium election mistakes and HOA election mistakes go deeper into each chapter.
Retention, and why it decides the challenge
Ballots, sign-in sheets, voting proxies and all other papers and electronic records relating to voting must be maintained for one year from the date of the election, vote or meeting. § 718.111(12)(a)12.; § 719.104(2)(a); § 720.303(4)(a). Other official records are kept at least seven years. Associations throw election materials away in January because the boxes are in the way.
Destroying them early does two things. It forfeits the association's ability to prove the result, and in a condominium it can be a criminal matter. Section 718.111(12)(c)3. makes it a first degree misdemeanor to willfully and knowingly or intentionally deface or destroy accounting records required to be maintained, or to fail to create or maintain them, with intent to cause harm, and § 718.111(12)(c)4. makes it a third degree felony to willfully and knowingly or intentionally refuse to release or produce association records with intent to avoid detection or punishment. Chapter 720 carries parallel provisions at § 720.303(5)(d), (e) and (f).
So the retention rule is not clerical. Put the election materials in a labeled, sealed box with the date, keep it for the full year, and do not open it without counsel if a challenge is pending. Our guide to litigation holds and record preservation explains what changes the moment a dispute is threatened.
Finally, know the forum. In both chapters election disputes are excluded from presuit mediation and must be arbitrated by the Division or filed in court, and an arbitration petition challenging the legality of a director election is handled on an expedited basis. §§ 718.1255(5), (6); § 720.311(1). An arbitration decision becomes final if no complaint for trial de novo is filed within 30 days. Expedited handling means the association will not have time to assemble a file after the petition arrives.
Frequently Asked Questions About Association Election Mistakes
We mailed the second notice one day early. Is that a real problem?
Yes. The window in § 718.112(2)(d)5.a. is not less than 14 and not more than 34 days before the election. Thirty-five days is outside it, and a notice that is too early is as defective as one that is too late. If the meeting has not happened, reschedule and re-mail within the window. If it has, call counsel before anyone is seated.
Can the board count the ballots the night before to save time at the meeting?
No. Ballots are opened and counted at the duly called meeting in the presence of the unit owners in attendance. Counting in advance is a defect that cannot be cured by recounting publicly afterward, because the ballots have already been handled. Verification of outer envelopes against the voter list may be done in advance by an impartial committee, which is a different step.
Can our HOA use proxies to elect directors?
Usually yes. Section 720.306(8) permits members to vote in person or by proxy unless the governing documents provide otherwise, so the answer comes from your documents. Condominiums and cooperatives are the opposite: proxies may not be used to elect the board at all, and a proxy vote counted in a director election is a fatal defect.
An ineligible candidate was on the ballot but lost. Do we have to rerun the election?
Not necessarily. The analysis usually turns on the margin and on whether the outcome could have been different. Do the arithmetic, write it down, and send it to counsel rather than deciding at the table. If the ineligible candidate won, plan on running the election again.
How long do we keep ballots and envelopes?
One year from the date of the election under § 718.111(12)(a)12. for condominiums, § 719.104(2)(a) for cooperatives and § 720.303(4)(a) for HOAs. Keep them in a labeled sealed box. If a challenge is threatened or pending, do not open or discard anything until counsel says so.
Someone says they will file a challenge. What happens next?
Election disputes are not eligible for presuit mediation in either chapter. They go to Division arbitration or to court, and a petition challenging the legality of a director election is handled on an expedited basis. An arbitration decision becomes final unless a complaint for trial de novo is filed within 30 days. Preserve the file and call counsel the same day.
Contact Hamilton Mikes
Hamilton Mikes reviews election materials before they mail and handles election challenges before the Division and in court for boards throughout Lee, Collier and Charlotte Counties. If something has already gone wrong, call before the next step. Call 239-594-7227 or visit our Litigation and ADR page.
Statutes and authorities referenced
- § 718.112(2)(d)4., Fla. Stat. (annual meeting notice, posting, affidavit of mailing)
- § 718.112(2)(d)5.a., Fla. Stat. (election sequence; proxies prohibited; information sheets; 20 percent ballot requirement)
- § 718.111(12)(a)12., Fla. Stat. (ballots, sign-in sheets and voting records kept 1 year)
- § 718.111(12)(c)3., 4., Fla. Stat. (criminal penalties for destroying or withholding records)
- § 718.303(5), (6), Fla. Stat. (suspension of voting rights; board approval)
- § 718.1255(5), (6), Fla. Stat. (election disputes arbitrated or filed in court; expedited handling; 30 days for trial de novo)
- § 718.5012(10), Fla. Stat. (election monitors; 15 percent or six unit owners; association pays)
- § 719.104(2)(a), Fla. Stat. (cooperative voting records kept 1 year)
- § 719.106(1)(d), Fla. Stat. (cooperative elections)
- § 720.303(4)(a), Fla. Stat. (HOA voting records kept 1 year)
- § 720.303(5)(d), (e), (f), Fla. Stat. (HOA records penalties)
- § 720.305(4), Fla. Stat. (HOA suspension of voting rights)
- § 720.306(5), (8), Fla. Stat. (HOA meeting notice; proxies)
- § 720.311(1), Fla. Stat. (HOA election and recall disputes; no presuit mediation)
- Fla. Admin. Code R. 61B-23.0021 (condominium regular elections; envelopes; impartial committee; disregarded envelopes)