The Statutory Similarities and Differences Applicable to Condominium, Cooperative, and Homeowners’ Associations
Electronic voting continues to become an increasingly attractive option for community associations. The benefits of electronic voting are many and include the following: (i) allowing members to cast their votes from an electronic device anywhere with an internet connection; (ii) helping associations achieve quorum requirements because an electronic vote counts as the member being in attendance at the meeting; (iii) automating the counting and collection of votes thereby reducing the potential for errors associated with manual counting ballots; and (iv) saving associations money by reducing costs associated with the cost of printing and mailing of paper ballots and associated paperwork.
Despite the many benefits of electronic voting, many associations still insist on voting the old-fashioned way and are reluctant to adopt electronic voting. However, as further discussed below, adopting electronic voting is not a complicated endeavor.
So, how can an association adopt electronic voting? In short, at a properly noticed board meeting, the board of directors (the board) of the association must adopt a resolution approving electronic voting.
§§718.128, 719.129, and 720.317, Florida Statutes, applicable to condominium, cooperative, and homeowners’ associations respectively (collectively, the “electronic voting statutes”), require that, for such associations that desire to adopt electronic voting, a resolution of the board is required. Additionally, the electronic voting statutes provide, in pertinent part, that the resolution adopted by the board must provide members the option to receive notice of the opportunity to vote through an online voting system, establish reasonable procedures and deadlines for members to consent electronically or in writing to online voting, and must establish reasonable procedures and deadlines for members to opt out of online voting after giving consent. Therefore, the board will want to utilize the association’s attorney to assist with drafting of the electronic voting resolution to be sure that all statutory requirements are followed.
There are many significant similarities and differences within the electronic voting statutes, too. As to similarities, the electronic voting statutes allow associations to conduct electronic voting through an internet-based online voting system only if electronic voting is properly approved by the board. To vote electronically, a unit owner and/or member must opt in to do so. A member who votes electronically is considered in attendance for quorum purposes. As both a similarity and a safeguard, the online voting system must be able to permanently separate authentication/identifying information from the ballot for elections where secret ballots are provided for in the governing documents.
Additionally, when considering adopting electronic voting, associations should select an electronic voting service provider and platform that meets the statutory specifications as set out in the electronic voting statues. For example, the electronic voting statutes require the following:
- a voting system that is able to authenticate the owner’s identity
- the ability to authenticate the validity of each electronic vote to ensure that the vote is not altered in transit
- the ability to transmit a receipt from the online voting system to each owner who casts an electronic vote
- the ability to permanently separate any authentication or identifying information from the electronic voting ballot rendering it impossible to tie an election ballot to a specific unit or member (note for homeowners’ associations–the foregoing only applies if the association’s bylaws provide for secret ballots for the election of directors)
- the ability to store and keep electronic votes accessible to election officials for recount, inspection, and review purposes.
Regarding pertinent statutory differences, as to condominium associations, if at least 25 percent of the voting interests of the condominium petition the board to adopt electronic voting for the next scheduled election, the board must hold a meeting within 21 days after receiving the petition to adopt the resolution. The board must receive the petition within 180 days after the date of the last scheduled annual meeting. As such, the foregoing method serves as a statutory mechanism for unit owners to force a board to adopt electronic voting.
Additionally, if electronic voting has not been adopted by a condominium association, effective July 1, 2025, §718.128, Florida Statutes, for the first time requires condominium associations to designate an email address to receive electronically transmitted ballots. It also provides for the inclusion of specific language for those electronically transmitted ballots such as the inclusion of a unit number, a printed name acting as a signature, and a prominent capitalized statement explaining that by emailing the ballot the voting unit owner waives anonymity.
Regarding pertinent statutory differences for both homeowners’ and cooperative associations, the relevant electronic voting legislation does not include a provision for a member-triggered petition that would obligate the board to adopt electronic voting as there is with condominium associations. Additionally, if electronic voting has not been adopted by a homeowners’ or cooperative association, there is no requirement that either association designate an email address to receive electronically transmitted ballots. Further, both the Homeowners’ and Cooperative Association Acts provide for specific notice mechanisms for the board meeting at which the electronic voting resolution will be considered, including that written notice of such meeting being mailed, delivered, electronically transmitted (for those homeowners who have opted into receiving electronic notice), and posted conspicuously on the property at least 14 days prior to the meeting whereas, effective July 1, 2025, a condominium association only requires a 48-hour posted notice to adopt the board resolution approving electronic voting. Also, as to homeowners’ and cooperative associations, evidence of compliance with the 14–day notice requirement must be made by an affidavit executed by the person providing the notice and kept as part of the official records.
Overall, for those associations who adopt electronic voting, it presents an opportunity to modernize the voting process, increase member participation at meetings, reduce human error, and save money. By understanding the process associated with adopting electronic voting, coupled with an understating of the pertinent statutory similarities and differences, community associations are well on their way to successfully adopting electronic voting. Of course, best business practice dictates that if your association has questions regarding adopting electronic voting, to assist with drafting an appropriate board resolution, and to ensure compliance with other specific statutory requirements, your association should seek the assistance and guidance of its legal counsel.