By Attorney S. Kyla Thomson
Q: I live in a homeowner’s association. This year, we are having an election for two Board member positions. It is a contested election with six people running for the two Board of Directors seats. The Board has sent out the annual meeting notice, the election ballot with envelopes for return of the election ballot, as well as a proxy. We have been directed to return the proxy if we do not plan to attend the annual meeting in person. I don’t plan to attend the annual meeting in person as I will be out of town on that date. Is it important to return the proxy even though I do plan to send back my ballot in the envelopes provided? – Q.T., Naples
A: My short response to your question is yes. You must send back the proxy in order for your homeowner’s association to achieve quorum, hold the member’s meeting, and conduct the Board of Directors election at the member’s meeting.
Quorum is the required minimum number of owners who must attend the member’s meeting, in person or by proxy, so that the member’s meeting can actually occur. Section 720.306(1)(a) of the Florida Statutes provides that unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be thirty percent (30%) of the total voting interests. This means that unless a lower percentage is provided in your bylaws, at least thirty percent (30%) of the voting interests must either attend the member’s meeting in person or return a proxy so that the member’s meeting can occur.
In a homeowner’s association, the Board of Directors election occurs at a member’s meeting. If a quorum cannot be obtained because of the lack of in-person attendees or proxies, then the member’s meeting cannot occur, which also means that the Board of Directors election cannot occur. If the Board of Directors election cannot occur, then the Board members whose terms were supposed to end at the member’s meeting could end up serving on the Board until the next election.
This is very different compared to a condominium association. In a condominium association, a quorum does not have to be obtained in order for the Board of Directors election to occur. In fact, Chapter 718, Florida Statutes, the Condominium Act, provides that if at least twenty percent (20%) of eligible voters cast a ballot, then the election can proceed regardless of the condominium association’s quorum requirement.
If your homeowner’s association regularly struggles with obtaining quorum, the Board can review several options including lowering the quorum requirement for member’s meetings or eliminating the quorum requirement for Board of Directors election (similar to the condominium association statute). If your homeowner’s association is interested in discussing these options, then I encourage the Board to speak with its legal counsel to determine which option works best for your homeowner’s association and how to implement such option.
Q: I live in a condominium association and am thinking of purchasing an electric vehicle. I would like to install an electric vehicle charging station in my limited common element parking space. I know of other owners of electric vehicles who want to do the same thing. However, the Board of Directors is saying that I do not have the right to install an electric vehicle charging station at my parking space since it is part of the Association’s common elements, even if it is limited to my use only. This does not sound right. What are your thoughts on this? – J.C., Naples
A: Your are correct when you say that this does not sound right. In fact, your right to install an electric vehicle charging station in your limited common element parking space has been protected by Chapter 718 of the Florida Statutes or the Condominium Act.
The Florida Statutes allows you to install an electric vehicle charging station in your limited common element parking space as long as you are able to comply with several conditions, including, but not limited to, (1) the installation may not cause irreparable damage to the condominium property, (2) the electricity for the electric vehicle charging station must be separately metered or metered by an embedded meter and payable by the unit owner installing such charging station or by his or her successor, (3) the unit owner who is installing an electric vehicle charging station is responsible for the costs of installation, operation, maintenance, and repair, including, but not limited to, hazard and liability insurance. The association may enforce payment of such costs under s. 718.116, (4) if the unit owner or his or her successor decides there is no longer a need for the electric vehicle charging station, such person is responsible for the cost of removal of such charging station. The association may enforce payment of such costs under s. 718.116, (5) the unit owner installing, maintaining, or removing the electric vehicle charging station is responsible for complying with all federal, state, or local laws and regulations applicable to such installation, maintenance, or removal.
Additionally, the Association can also require you to: (1) comply with bona fide safety requirements, consistent with applicable building codes or recognized safety standards, for the protection of persons and property, (2) comply with reasonable architectural standards adopted by the association that govern the dimensions, placement, or external appearance of the electric vehicle charging station, provided that such standards may not prohibit the installation of such charging station or substantially increase the cost thereof, (3) engage the services of a licensed and registered firm familiar with the installation or removal and core requirements of an electric vehicle charging station, (4) provide a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for any claim related to the installation, maintenance, or use of the electric vehicle charging station within 14 days after receiving the association’s approval to install such charging station or notice to provide such a certificate, and (5) reimburse the association for the actual cost of any increased insurance premium amount attributable to the electric vehicle charging station within 14 days after receiving the association’s insurance premium invoice.
As you can see from above, you do have a right o install an electric vehicle charging station but you must comply with several conditions that not only ensures that you are paying for the electricity that you are using but also ensures that the association property is protected. Please note that most of these conditions also apply for any owner who desires to install a natural gas fuel station in a limited common element parking space.
Your Board of Directors may not be aware regarding your right to install an electric vehicle charging station in your limited common element parking space. In order to assist them, I recommend showing them Section 718.113(8), Florida Statutes.