Recall

OK Here we go. We nearly have the needed recall ballots to remove 4 board members. .We have 9. We want to have them served before the next meeting because we are aware of their intention to resign 2 of our 4 then replace them at the meeting. This would allow them to continue control. If they are served and the 5 business days have not passed can they then resign and replace? Who is responsible for the count? I mean we have around 220 votes available. How do we get to the exact number we need. I know 50+1 but what about vacant lots whose owners have passed with no heirs? What about bank foreclosed properties? They are aware of the recall will not respond to request for number. Thanks for your help.

James,

Are you saying you have the actual ballots?
This typically isn't the way a recall works.

The typical way is:

Individual or Committee circulates petition to hold a special meeting for the purpose of recalling a,b,c director and elect new directors.
Signed petition is turned over to the Board.
Board verifies signatures and number.
If petition is correct board arranges for a special meeting.
Notice of meeting is given to membership
Meeting is held
Quorum requirement is met
Discussion held
Polls open and ballots cast for recall
Polls close, ballots counted, results announced.
Option 1 - nominations sought from floor, polls open, ballots cast, etc.
Option 2 - meeting closed. Remaining board members appoint replacements
Option 3 - meeting closed. New meeting held for elections

Typically, if a petition is presented saying something like "we the undersign desire to recall the board" - this is a request. As a request, the board can act on it or ignore it. Since the membership is given the right to call a special meeting, this is what the petition must say.

If you are instigating a recall, you must follow proper procedures - otherwise all the work can be for nothing.

Tim

James,

FL 720 does say an agreement in writing can be used.

Good luck and let us know how it went.

Tim

Our meeting times are designated in by-laws same time and place 2nd Monday each month. If we serve to recall ballots one half hour before meeting by courier. 4 of the 9 members are recalled leaving a quorum of 5. The board continues the meeting with the four recalled members not stepping down. Two of the four recalled members then resign. Are the other 2 permitted to vote in the selection of new members?

Your right. I hate thinking about gathering another 140 signatures when they do the resign and replace on Monday. Thanks

I have written a number of threads concerning this group. I bring this up because the tactic they use is refuse records then file presuit mediation for some bogus covenant they are selectively enforcing. As they said at the meeting-play hardball with me. I spend money trying to see records. Then get stuck in an opened mediation watching dollar signs add up with each stupid meaningless point. Example- We sent hin two certified letters but they came back. Mediator says "why." BOD "we sent them to the wrong address, but he still didn't have our permission." Give me a break. I lose my money and have no way to recover it. Oh yea, file a suit against them and end up right back with the mediator.Now we have MANDATORY mediation. Do I have to pay half of that too? Do members get stuck with their attorney fees again? After all they are supposed to have been recalled and are still spending our cash. I am stating to think lawyers pay these idiots to move into HOA's.

Please advise

Hi James:

Sometimes issues encountered in an HOA can be frustrating; however, it takes knowing your documents, state statutes, and having lots of patience. If I was in an HOA in FL and we needed a recall I would insure it consisted of a majority of the board. This would insure the members and not the remaining board members can vote to replace. Just my personal opinion … keep in mind knowledge is power. If you are aware of certain regulations or statutes you can utilize to your benefit.

Hi James:

Now I believe I understand where you are encountering an issue. You are just looking at the statutes for FL 720; however, these statues also will reference other ones which also pertain as noted in bold below:

720.311 Dispute resolution.—
(1) The Legislature finds that alternative dispute resolution has made progress in reducing court dockets and trials and in offering a more efficient, cost-effective option to litigation. The filing of any petition for arbitration or the serving of a demand for presuit mediation as provided for in this section shall toll the applicable statute of limitations. Any recall dispute filed with the department pursuant to s. 720.303(10) shall be conducted by the department in accordance with the provisions of ss. 718.112(2)(j) and 718.1255 and the rules adopted by the division. In addition, the department shall conduct mandatory binding arbitration of election disputes between a member and an association pursuant to s. 718.1255 and rules adopted by the division. Neither election disputes nor recall disputes are eligible for presuit mediation; these disputes shall be arbitrated by the department. At the conclusion of the proceeding, the department shall charge the parties a fee in an amount adequate to cover all costs and expenses incurred by the department in conducting the proceeding. Initially, the petitioner shall remit a filing fee of at least $200 to the department. The fees paid to the department shall become a recoverable cost in the arbitration proceeding, and the prevailing party in an arbitration proceeding shall recover its reasonable costs and attorney’s fees in an amount found reasonable by the arbitrator. The department shall adopt rules to effectuate the purposes of this section.
(2)(a) 

Now 718.1255 as noted above states:

718.1255 Alternative dispute resolution; voluntary mediation; mandatory nonbinding arbitration; legislative findings.—

(k) The arbitration decision shall be presented to the parties in writing. An arbitration decision is final in those disputes in which the parties have agreed to be bound. An arbitration decision is also final if a complaint for a trial de novo is not filed in a court of competent jurisdiction in which the condominium is located within 30 days. The right to file for a trial de novo entitles the parties to file a complaint in the appropriate trial court for a judicial resolution of the dispute. The prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorney’s fees in an amount determined by the arbitrator. Such an award shall include the costs and reasonable attorney’s fees incurred in the arbitration proceeding as well as the costs and reasonable attorney’s fees incurred in preparing for and attending any scheduled mediation.

Also be advised that you have the right to collect damages of up to $50 per day for 10 days for denied access to information you should have been given access per in part the following statute:

720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.—

(5) INSPECTION AND COPYING OF RECORDS.—The official records shall be maintained within the state and must be open to inspection and available for photocopying by members or their authorized agents at reasonable times and places within 10 business days after receipt of a written request for access. This subsection may be complied with by having a copy of the official records available for inspection or copying in the community. If the association has a photocopy machine available where the records are maintained, it must provide parcel owners with copies on request during the inspection if the entire request is limited to no more than 25 pages.
(a) The failure of an association to provide access to the records within 10 business days after receipt of a written request submitted by certified mail, return receipt requested, creates a rebuttable presumption that the association willfully failed to comply with this subsection.
(b) A member who is denied access to official records is entitled to the actual damages or minimum damages for the association’s willful failure to comply with this subsection. The minimum damages are to be $50 per calendar day up to 10 days, the calculation to begin on the 11th business day after receipt of the written request.

In most states the general rule is the prevailing party in a lawsuit is awarded attorney fees.

You need to ask your attorney why you have not been awarded the appropriate fees if you have won as stated in your comments.

It potentially could depend if the statute states “shall” vs. “may”. 718.1255(k) states “shall” regarding the arbitration:

The prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorney’s fees in an amount determined by the arbitrator. Such an award shall include the costs and reasonable attorney’s fees incurred in the arbitration proceeding as well as the costs and reasonable attorney’s fees incurred in preparing for and attending any scheduled mediation.

Shall is similar to “must” or “will”. If a statute states “may be awarded” then you potentially need to request to insure award. Again, it is a general rule as some states may have another statute somewhere regarding complaint procedures which can come into play. If James won as stated he needs to at least ask his attorney what is going on regarding the fees.

Hi James:

Per your question:



That would be something to ask your attorney as the statute does not address that issue. There are variables potentially it could depend on time between requests, was each request the same or different, etc. And you are right there is no real winner in these situations.

Hi James:

Let me make sure I am following you and correct me if wrong:

1. Your HOA is supposed to have 9 board members.

2. Now only have 6 because 1 resigned this evening (and apparently others have previously?).

3. You now have 6 board members, but are gridlocked with three against three.

If the above numbered statements are correct then potentially the remaining 6 are supposed to elect/appoint three members to bring total to 9 board members required by the governing documents to fill the positions until the next election.

Hi James:

Sorry … you would not be able to control as it is called “conflict of interest”. You would have to excuse yourself from any items concerning yourself.

Sorry Janet it was a joke.

(e) If a vacancy occurs on the board as a result of a recall and less than a majority of the board directors are removed, the vacancy may be filled by the affirmative vote of a majority of the remaining directors, notwithstanding any provision to the contrary contained in this subsection or in the association documents. If vacancies occur on the board as a result of a recall and a majority or more of the board directors are removed, the vacancies shall be filled by members voting in favor of the recall; if removal is at a meeting, any vacancies shall be filled by the members at the meeting. If the recall occurred by agreement in writing or by written ballot, members may vote for replacement directors in the same instrument in accordance with procedural rules adopted by the division, which rules need not be consistent with this subsection.

Can anyone tell me what the last sentence means, "in the same instrument" ?

James,

The written agreement or ballot would be the "instrument" (process) of the recall.

Since your recall is being done by an agreement in writing and/or mail in ballots, that section applies and it means that in your recall campaign, if new candidates were included in the same letter (aka instrument) then everything could be done at one time. However, if you only asked for a recall then filling of vacancies, if less than a majority are removed, the remaining board members will appoint individuals to fill the vacancy. If a majority or more are recalled and electing of replacement directors were not in the written agreement, the membership fills the vacancy at a meeting (with proper notice, etc. as you would for any general meeting).

Tim

Peter
I used the A section of this form. Section be said only use if recalling majority of board members. I also do not have Sec C on the signed agreements because this is the first time I have seen it. I will however be the representative. We are replacing 3 members and will be deadlocked for selection of the other 3. (3 to 3) Will we stay this way until the election in November?

There has to be but they don't attend the meetings. We'll see what happens. When a board member resigns to avoid recall and is replaced it blows the remaining people's credibility. If the board takes the case to an arbitrator I believe they will also remove the person chosen to fill that seat. It was obviosly done to avoid losing the majority.