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Subject: FL-Need help removing entire 3 person board

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RachelS
(Florida)

Posts:6

08/13/2006 8:57 AM
Hello all, My friend, VM has already posted about our board's inaction in our community here in Florida. We tried to recall one of our board members using recall ballots with 51% of our community signing the ballots. We just had a board meeting and one of the board members could not certify the ballots because they were hand delivered (must either be sent in by certified mail or by process server). Our neighbors at the meeting demanded that our president resign (we were trying to get him removed). He refused. There is another board member, who is a lawyer, who refuses to support us. In fact, he has been acting so strange, that now we want them ALL removed. The third member of the board was out of town and was not present at this meeting. To be frank, the third board member is often not included in the dealings with the other two board members, so we feel he may not be a help to us. What are our options here? We have been dissecting the Florida Statutes. The lawyer who sits on the board has repeatedly said he would fight whatever we came up with, including going to , regardless of how much money we waste (rather than the money he is spending doing this...we have had residents ask why he is fighting this so hard?) We have already wasted close to $1k of our association's money by having the board pay last minute for a meeting place, paying an attorney to look over the ballots and come to this last meeting, plus our management company mailing out a letter from the board to its members right before our meeting. Can anyone help us as to how to proceed next? I know there is no regulatory agency for HOAs..but is there somewhere we can call at the state level that would help us to interpret the statutes better and what our options would be here? How would you proceed next? thanks, Rachel

RogerB
(Colorado)

Posts:3726

08/13/2006 9:45 AM
Rachel, your BOD is "stonewalling" to try to stay in office. I have not heard of any law which restricts hand delivery of properly executed ballots. Did you follow all processes listed in your HOA By-laws? By petition you should be able to call a special members meeting to remove Board members and elect new Board members to replace any removed. Read and follow your By-laws. If they are clear you do not need an attorney to interpret them for you. If you remove the attoney from the Board I'd bet he would not use his own money to sue. And he needs to be removed if he wants to spend the HOA's money in a suit just to try to stay on the Board. Reminds me of a friend who defended the integrity of attorneys. He said, "I know there are attorneys who are ethical and put justice above winning." I asked "how many?" He said "One"

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

RachelS
(Florida)

Posts:6

08/14/2006 4:55 AM
Thanks for your ideas. Our HOA lawyer (not the one on the board) did tell us the ballots could not be certified because they were hand delivered. The Statutes clearly state they must be delivered by certified mail or process server. Let this be a lesson here...you must follow every step exactly as noted for it to be legal (we were trying to save money). Our bylaws do not say a whole lot about recalling anyone on the board, so we are following what the Statutes say. We are pretty clear how to remove one board member...but what we cannot figure out by reading the Statutes, if we want to recall the whole board, does the board get a chance to dispute the recall (ie arbitration) even if you go the special meeting and 2/3 vote route? That is the part I don't understand...how can those in charge have a "vote" in accepting whether votes against them are valid? That's like the President of the US saying "oh, I'm not going to certify these votes" in the next election...it doesn't make sense to me.... As far as the special meeting goes...we have to have a meeting to call a special meeting? Or is there a petition that can be circulated requesting a meeting? Once we are at the special meeting, am I correct in assuming that 2/3 of the people have to vote each member off the board? We must then have 2/3 of the community there at the meeting? Is this done in an open forum, on paper, how? Are proxies allowed for folks who can't be there? The Statutes don't go into detail on this.

RogerB
(Colorado)

Posts:3726

08/14/2006 6:30 AM
Rachel, apparently your By-laws leave much to be desired. They should have answers to all the questions you raise. Obviously they don't. Then next step I would take if incorporated is to search through the non-profit corporation act for your state to see if this provides guidance. Another source can be state statutes regarding HOAs, however they may not provide sufficient detail. Since you have an HOA attorney you could try to get the Board to request the attorney to give advice on these procedures. If proceedures are established your By-laws should be amended to include them. I would still question the advice given by your HOA attorney. You may want to seek an independent opinion from an attorney who is not employed by the Board. We normally handle this by petition for a special meeting for the purpose of "voting on removal of all or specific Board members and election of Directors to replace any removed". A date, time, and location for the meeting is specified. The petition includes all wording plus lines for each owner to sign, date, and list address. Normally By-laws require 20% to call the meeting. The By-laws usually require a simple majority of those members voting (a quorum is needed to call the meeting to order) to elect or remove a Director. It depends on your By-laws as to whether proxies are allowed to establish a quorum and to vote on Directors. If the By-laws are silent on proxies are required I would not depend on them since you have Board members using their power to stonewall. Likewise regarding use of secret ballots at the meeting; but have at least two independent people count secret ballots.

Roger Borcherding Official HOATalk.com Sponsor DARCO Property Management (Colorado) (303) 925-0150 *See legal notice below (end of page) or go to www.hoatalk.com/legal

RachelS
(Florida)

Posts:6

08/14/2006 8:28 AM
As far as the petition, is this something we would go door to door with and have folks sign with the information you mentioned? I cannot believe we wasted 3-1/2 weeks going door to door to get 222 recall ballots signed (this was when we were just trying to get the President off the board) only to have them turned down on a technicality. We would have no problem picking them up from the management company and sending them in certified mail, but we are afraid to do so because the lawyer on the board already said that he would immediately send them to arbitration, which is his right. So we feel we are stuck here. Our Bylaws are not specific enough and therefore we have looked to the Florida Statutes for guidance, but even they do not go into the specific procedures. Are you saying that if we get at least 20% of the homeowners to sign a petition, the board must call a special meeting and then as long as 2/3 vote at this special meeting to remove each board member, that this would be the most cost effective way to get them out? I know you cannot give legal advise, but perhaps you could give me an example of how you would do this with your HOA.

LisaP
(Florida)

Posts:32

08/14/2006 10:23 AM
Rachel: Im in Florida too. Your best bet is to go to the DBPR (Department of Business and Professional Regulation) and/or the State's Ombudsman office. Do the recall the right way! If the Board fails to certify the vote, they might just be jerking you around. Consult a Community Association attorney and MAKE SURE TO DO THIS RIGHT! There need not be a reason for the recall, but making sure all of the i's are dotted and t's are crossed is essential. Thanks, Lisa

JoelM
(Ohio)

Posts:10

08/15/2006 12:29 PM
It seems that the HOA attorney you hired and paid $1,000 to was not interested in resolving your issues. There should be no limitation to removing all three board members. Either the By-laws or state regulations will provide you with the method. The attorney specializing in HOA work should know this off the top and it should not cost you anything to get that questions answered. Calling the state or other agency will be a waste of time. If the by-laws are vague and ambiguous, have a community association clean them up pursuant to the wishes of the association. If a board member is fighting to stay on the board they either have an agenda, or are hiding something. I do not know how big the association is, but are checks and balances in place to monitor the accounts and reserve funds? Maybe they want control to avoid issues being uncovered. Mystery is the death of associations, because people assume something is being hidden.

RachelS
(Florida)

Posts:6

08/21/2006 1:58 PM
We still have not resolved this...our HOA attorney was not a big help..he said he is acting in the best interest of the HOA, but it seems he is acting in the interest of what the board wants...we are so afraid of getting a petition or ballots sent to arbitration, that we are looking at getting some legal advise elsewhere before we proceed. We want to research how much attorneys charge per hr around here who specialize in HOA stuff? We are in Tampa...anyone have any idea before I start calling around?

LisaP
(Florida)

Posts:32

08/23/2006 11:23 AM
Rachel... Im in Florida and willing to help. Let me know what you need.

MichelleZ1
(Illinois)

Posts:1

08/30/2006 4:24 PM
Hi - We had a similar problem in Illinois. We followed every rule to call a special meeting in an attempt to remove our entire Board, which had signed contracts for expenditures that will deplete our HOA reserves and were not approved at an HOA meeting. We were successful in removing only our Board president. Our Bylaws allow the remaining Board members to appoint a replacement for him, so we cannot elect a new person to the Board. The remaining Board members are continuing with their plans (for a new entranceway that will cost $2000 per home extra assessment) even without their president, and he is still advising them although not technically on the Board any more. Is there anything short of hiring an attorney that we can do to stop the construction from starting? We would like to get an injunction preventing them from starting construction until a proper vote is taken. Please help!!

MarkM4
(Florida)

Posts:1

09/06/2006 5:57 AM
Hi, I was reading along and would like to share that we just successfully recalled our board and we are now making the necessary positive changes for the community. A process server can be your voters representative or anyone that hand delivers the ballots to the current board. There are a couple of websites that you should access to find out about case studies that support your effort. This site is from the DBPR and it is a compilation of verdicts: http://www.myflorida.com/dbpr/lsc/hoa/final_order_indexes/hoaindex.pdf This is a great support site: http://www.ccfj.net/index.html This is a site you should access to answer any questions regarding homeowners rights against rouge Board's. These are court decision: http://www.ccfj.net/HOAartcourt.htm

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