By Steven G. Rappaport, Partner
As many of you may be aware, Section 718.128, Florida Statutes, was created many years ago to provide a mechanism for electronic voting. Under the old system, the Board of Directors had the authority, upon 14 days written notice mailed to all owners to approve a Board Resolution adopting electronic voting to be used for those who consent to vote electronically within the community. In the 2025 Legislative session, a number of changes have been made to the electronic voting process, including a new allowance for voting by email ballot.
First, with regard to electronic voting, Section 718.128, Florida Statutes, was amended to no longer require a 14-day notice for the meeting to approve the Board Resolution adopting electronic voting. Now, the standard 48-hour notice is all that is needed to be posted in order to approve electronic voting. However, the statute was also amended to provide the owners with an opportunity to petition for electronic voting, if the Board does not pass its own resolution. Now, the statute allows twenty-five (25%) percent of the owners to petition for the Board to adopt electronic voting, and if the Board receives a petition from this twenty-five (25%) percent of the voting interest, the Board is obligated to adopt electronic voting.
In addition to electronic voting, the statute was also amended to provide for balloting by email, where electronic voting is not adopted by the Association. In this circumstance, if an Association has not adopted electronic voting, either by Board vote or by membership petition, the Association is now obligated to designate an email address to receive emailed ballots. The ballot must be provided just like the secret paper absentee ballot, in the second notice of the Annual Meeting, and must contain a place for the owner who is casting the vote to print their name, place their signature and unit identification, in a similar way in which they would otherwise sign the outer envelope, if they were casting a traditional paper vote. So, in other words, the Association now has either the option to adopt electronic voting or if they have not done so, will be obligated to provide a way for owners to cast their ballot by email. However, the tradeoff is that where an owner has opted to cast a vote by email, their vote will no longer be secret, and they will be required to waive their anonymity by signing the email ballot when they scan and return it to the Association’s designated email address.
Please note that this new procedure does not relate to HOAs under Chapter 720, Florida Statutes. This is a procedure only for Condominiums. Therefore, it is very important, moving forward, that Associations consult with Association counsel when preparing their Annual Meeting and Election notices and ballots, in order to make sure to comply with these new obligations.