I am often approached by various members of HOA and Condominium Boards around Tampa Bay who are unhappy with other Board Members and want to have them removed. There is normally a difference of opinion or a Condo Board Member who is acting beyond the course and scope of their role as a member of the Board. As I would normally call them the “Condo Commandos.”
Florida Statute 718 and Florida Statute 720 have provided for many years that removing a member of the Board of Directors from office, which is also called a “recall,” can only be done by a vote of a majority of the entire voting interests . . . not just a majority of those who vote. The laws have been amended a few times over the past decade to permit removal of HOA or Condo Board Members for other reasons, including for reasons pertaining to financial delinquency and felony convictions.
Recently, there have been changes to the Florida statute in 2013, which are technical in nature, and designed to close a loophole in the law, which involves what is known as a “reverse recall.” Under the statute, if the owners serve recall papers on a Board of Directors, the Board must meet within five business days to either “certify” (approve) the recall or “decertify” (challenge) the recall. If the recall is challenged, and challenge must specify the legal grounds, then an arbitration proceeding is held to determine the legal validity of the recall.
Working as an HOA attorney, I have handled cases where members have attempted to recall a Director and have served the recall papers on the association, but then the Board would not meet to either certify or decertify the recall. Under the old law, the Board’s failure to act meant that the recall was certified (approved) as a matter of law, and the Director was removed from office. In other words, by not following the procedures in the statute, the Board deprived the Director recalled of having a fair hearing on the validity of the recall. This has been referred to by some as “reverse recall.”
Under the new FL statute, a Director who is the subject of recall is given individual standing to file arbitration proceedings to challenge the recall process, in cases where the Board failed to act, and also in cases where the Board certifies the recall.
The new statute also adds a couple of new procedural deadlines and further provides that the state agency which referees recall disputes may not accept a case for filing when there are sixty or fewer days until the scheduled re-election of the condo or HOA Board member sought to be recalled.
If your Condo or Home Owners Association is having similar issues, please contact the Tampa based FL Legal Group Law Firm to speak with an experienced HOA/Condo attorney.
Attorney Nicki Fernandez Asmer and her team can help answer your questions, and guide you to resolve any pending problems.
Call 1-800-984-9951 to schedule a consultation or click here