Online Voting: A Tool for Voter Inclusion and Fraud Deterrence

Over the past few weeks, the Miami Herald and Univision have teamed up to investigate allegations of fraudulent condominium elections, primarily in Miami-Dade County. In fact, Miami-Dade County by far has the highest number of complaints of any county in Florida for voter fraud, according to the Department of Business and Professional Regulation, accounting for 566 of the 1908 complaints filed. One condominium in Miami was found to have had a record turnout where 115% of the owners participated in the election!

Not coincidentally, the State Legislature saw it appropriate last year to pass laws to protect against voter fraud and to facilitate voting in condominiums by enacting online voting provisions.

Electronic voting for Condominiums, Cooperatives and Homeowners’ Associations is now allowed, including for the most controversial of all votes – elections. Associations may conduct elections and other unit owner votes through an internet-based online voting system if the unit owner consents, in writing, to online voting and if association adheres to certain requirements. These include providing a method to authenticate the unit owner’s identity to the online voting system, a method to transmit an electronic ballot to the on- line voting system that ensures the secrecy and integrity of each ballot and a method to confirm at least 14 days before the voting deadline, that the unit owner’s electronic device can successfully communicate with the online voting system.

Online voting might sound mundane, but it is the most exciting reform to hit Florida’s 60,000 community associations in a long time. It will open the door to unit owners who have been disenfranchised in the past by not being able to vote in an easy and timely fashion.

“Just the convenience factor alone is noteworthy, but add to that the benefit of curbing voter fraud.”

In Miami especially with so many owners living abroad, think of all the postage, manpower effort and sheer hassle that will be saved by allowing these foreign owners to vote with a mere click on their computer. For condominium elections, the Association avoids having to copy paper ballots and send them overseas and the owner having to sign the secret bal- lot, place it within two envelopes and mail it back via U.S. Mail or Federal Express in the hopes it will arrive before the election.

An Association that wants to implement electronic voting should begin the process by finding a company that has an electronic voting program that meets the requirements of the statute, and adopting a board resolution authorizing electronic voting. The board resolution should specify the procedure for obtaining owner consent for electronic voting. To serve this need, my law firm, Becker & Poliakoff, is pleased to recently have become the only law firm in Florida to provide secure, online voting software for community associations, called BPBALLOT. Hopefully, in the not too distant future, there will be such voting software in different languages to really allow our diverse South Florida population to cast their votes and have a voice in the governance of their communities.

Goodbye smoke signals and carrier pigeons and hello, technology!

Rosa de la Camara is shareholder with the law firm Becker & Poliakoff where she has worked for 27 years concentrating her practice on representing community associations and addressing complex issues involving Boards, unit owners, managers and state and local policymakers. She is widely recognized for her well-honed skills and serves as General Counsel to many boards, including BHA.


Originally posted on Florida Condo HOA Blog


Are Criminal Background Checks for New Purchasers and Renters in a Community Association Discriminatory?


Most community associations screen potential purchasers and potential renters. In fact, when surveyed, many board members state that screening community occupants is one of their primary functions.

What is the #1 item that typically presents a red flag on a screening application? If you said evidence of a criminal history you would be correct and it follows closely on the heels of financial red flags such as prior bankruptcies.

HUD’s General Counsel, Helen R. Kanovsky, issued a Guidance Memo which warns that looking at the criminal background of applicants may have a disparate impact on minorities who may have been subject to different scrutiny under the criminal justice system. According to the memo, as many as 100 million Americans (or 1/3 of the population) has a criminal record of some sort.

When your board is presented with a background check that reveals a criminal history, there is more to consider than just the fact that the applicant has a record. If a background check reveals that the applicant has previously been arrested or convicted of a crime you must ask experienced association counsel the following questions:

  • Did the crime involve theft or violence?
  • Was the applicant charged with a misdemeanor or a felony?
  • How long ago was the crime committed?
  • Did the crime involve an attack on a minor?
  • Did the crime result in a conviction?

Certainly, an applicant who committed a white-collar crime twenty years ago presents less of a security concern for a community association than  an applicant who was arrested for rape or another violent crime within the last five years.  Denying applications for any reason requires a conversation with association counsel. Denying applications based on criminal background is an even more compelling reason to have that conversation.

HUD’s General Counsel concluded:

The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics. Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification. Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.

This does not mean that your board should discontinue the responsible screening of potential purchasers and prospective renters; in fact, abandoning careful screening could subject the association to significant liability. In order to walk the tightrope between screening applications and avoiding a discriminatory effect from such screening, your Board must address each application on a case by case basis and prove that your approval decision is justified and is necessary to achieve a substantial, legitimate, nondiscriminatory interest of the community.

 This post originally appeared in The Community Association Law Blog and Florida Condo HOA Blog

Make it Count

Let’s take a short quiz.

Who are the most likely people who want to purchase their first home? Current renters.

Who are the people who need their credit score to positively reflect years of on-time rental payments? Current renters.

Who are the people who shouldn’t have to change the way they pay their rent just to have their credit score improved by their on-time payments? Current renters.

The answers to those questions are obvious. So why is this even an issue? Because most rental payments arenot reported to the Credit Bureaus, and therefore have no opportunity to positively influence credit scores.

Is this a big problem? Let’s look at the numbers. In 2014, there were 104 million renters in the US which counts for 33% of the population. Of those, Millennials make up a huge portion of the market. In a survey of our millennial employees, we found that 83% still view home ownership as a major life goal.

So, you have an audience of renters with a goal of home ownership, and a system that doesn’t allow them to benefit from their on-time rental payments to raise their credit score to be able to qualify for a mortgage. That sounds like the prime opportunity for innovation. This is a problem that needs fixing.

And while Millennials are a large, vocal and often-analyzed group, there are other constituents who desperately need this service as well. Our friends in low income housing who are living paycheck to paycheck may not have the dream of home ownership, but they certainly deserve to benefit from on-time rental payments. Having that positive rental history could be the difference between getting approved or not – and if approved, determining the interest rate. Its importance can’t be over-stated.

The third question above speaks to ease of use and seamless adoption. If you are already paying your rent online, wouldn’t it be great if that software offered the option to report your positive results to the credit bureaus? That way, the renter doesn’t have to change their payment method – they just enroll in the credit reporting program and it is all taken care of.

PayLease recently implemented a credit reporting service designed to solve all of these predicaments. By enrolling in this optional service, renters have the opportunity to potentially build their credit score with each on-time payment made online. The payment data not only helps build credit scores, but can also help property managers validate a potential resident’s positive rent payment history. And, credit reporting is free to both the renter and the property management company, truly making it a win-win for all parties.

So ask yourself – are we taking care of our renters? Don’t they deserve to benefit from their diligence of on-time rental payments? Our constituents need a break. After all, it’s their money and they are spending it wisely. Let’s make it count.


Originally posted on PayLease Blog