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SureshD

Posts:0

05/01/2010 11:49 AM
OK, Opinions please or links to similar cases if known... As I understand it, Fla. HOA Board members can only be forceably removed by the owners/general membership via the recall statute proceedures. Also, the Board can reassign members (officers) as desired as often as desired. What if the Board is comprised of mostly, if not all, Board appointed volunteers (NOT elected)due to apathy, lack of Quorum, etc., etc., and this method of Board member replacement by Board appointment has gone on for years. Keep in mind it is likely that due to turn over of "volunteers" that the Board members currently present were not all present when any one volunteer was appointed, except the last one appointed of course. Did I make myself clear in the last two paragraphs above? My question for opinions... Can the Board remove any member because they (as an institution) appointed him/her? Including the last volunteer appointed? Thanks in advance, Sam

DonnaS
(Tennessee)

Posts:5671

05/01/2010 12:46 PM
Suresh, Here you go 617.0808 Removal of directors.-- (1) Subject to subsection (2), a director may be removed from office pursuant to procedures provided in the articles of incorporation or the bylaws, which shall provide the following, and if they do not do so, shall be deemed to include the following: (a) Any member of the board of directors may be removed from office with or without cause by: 1. Except as provided in paragraph (i), a majority of all votes of the directors, if the director was elected or appointed by the directors; or 2. A majority of all votes of the members, if the director was elected or appointed by the members. (b) If a director is elected by a class, chapter, or other organizational unit, or by region or other geographic grouping, the director may be removed only by the members of that class, chapter, unit, or grouping. However: 1. A director may be removed only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors, except as provided in subparagraphs 2. and 3. 2. If cumulative voting is authorized, a director may not be removed if the number of votes sufficient to elect the director under cumulative voting is voted against the removal of the director. 3. If at the beginning of the term of a director the articles of incorporation or bylaws provide that the director may be removed for missing a specified number of board meetings, the board may remove the director for failing to attend the specified number of meetings. The director may be removed only if a majority of the directors then in office vote for the removal. (c) The notice of a meeting to recall a member or members of the board of directors shall state the specific directors sought to be removed. (d) A proposed removal of a director at a meeting shall require a separate vote for each director whose removal is sought. Where removal is sought by written consent, a separate consent is required for each director to be removed. (e) If removal is effected at a meeting, any vacancies created shall be filled by the members or directors eligible to vote for the removal. (f) Any director who is removed from the board is not eligible to stand for reelection until the next annual meeting at which directors are elected. (g) Any director removed from office shall turn over to the board of directors within 72 hours any and all records of the corporation in his or her possession. (h) If a director who is removed does not relinquish his or her office or turn over records as required under this section, the circuit court in the county where the corporation's principal office is located may summarily order the director to relinquish his or her office and turn over corporate records upon application of any member. (i) A director elected or appointed by the board may be removed without cause by a vote of two-thirds of the directors then in office or such greater number as is set forth in the articles of incorporation or bylaws. (2) A director of a corporation described in s. 501(c) of the Internal Revenue Code may be removed from office pursuant to procedures provided in the articles of incorporation or the bylaws, and the corporation may provide in the articles of incorporation or the bylaws that it is subject to the provisions of subsection (1). History.--s. 42, ch. 90-179; s. 56, ch. 93-281; s. 65, ch. 95-274; s. 85, ch. 97-102; s. 1, ch. 97-230; s. 28, ch. 2009-205.

SureshD

Posts:0

05/01/2010 1:35 PM
Thanks Donna. Been awhile. I should have re-read it first. Seems QUITE clear to me now.

SureshD

Posts:0

05/01/2010 1:50 PM
Wait Donna, on second thought, I don't think anything is solved yet. That is 617, and I understand our HOA is NFP Corp. as well. But 720 is more involved as stated below and makes no mention of 617 or vice versa. Opinion time again... Does 617 trump or compliment 720, or vice versa? 720 verbage: (10) RECALL OF DIRECTORS.-- (a)1. Regardless of any provision to the contrary contained in the governing documents, subject to the provisions of s. 720.307 regarding transition of association control, any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interests. 2. When the governing documents, including the declaration, articles of incorporation, or bylaws, provide that only a specific class of members is entitled to elect a board director or directors, only that class of members may vote to recall those board directors so elected. (b)1. Board directors may be recalled by an agreement in writing or by written ballot without a membership meeting. The agreement in writing or the written ballots, or a copy thereof, shall be served on the association by certified mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure. 2. The board shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing or written ballots. At the meeting, the board shall either certify the written ballots or written agreement to recall a director or directors of the board, in which case such director or directors shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or proceed as described in paragraph (d). 3. When it is determined by the department pursuant to binding arbitration proceedings that an initial recall effort was defective, written recall agreements or written ballots used in the first recall effort and not found to be defective may be reused in one subsequent recall effort. However, in no event is a written agreement or written ballot valid for more than 120 days after it has been signed by the member. 4. Any rescission or revocation of a member's written recall ballot or agreement must be in writing and, in order to be effective, must be delivered to the association before the association is served with the written recall agreements or ballots. 5. The agreement in writing or ballot shall list at least as many possible replacement directors as there are directors subject to the recall, when at least a majority of the board is sought to be recalled; the person executing the recall instrument may vote for as many replacement candidates as there are directors subject to the recall. (c)1. If the declaration, articles of incorporation, or bylaws specifically provide, the members may also recall and remove a board director or directors by a vote taken at a meeting. If so provided in the governing documents, a special meeting of the members to recall a director or directors of the board of administration may be called by 10 percent of the voting interests giving notice of the meeting as required for a meeting of members, and the notice shall state the purpose of the meeting. Electronic transmission may not be used as a method of giving notice of a meeting called in whole or in part for this purpose. 2. The board shall duly notice and hold a board meeting within 5 full business days after the adjournment of the member meeting to recall one or more directors. At the meeting, the board shall certify the recall, in which case such member or members shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or shall proceed as set forth in subparagraph (d). (d) If the board determines not to certify the written agreement or written ballots to recall a director or directors of the board or does not certify the recall by a vote at a meeting, the board shall, within 5 full business days after the meeting, file with the department a petition for binding arbitration pursuant to the applicable procedures in ss. 718.112(2)(j) and 718.1255 and the rules adopted thereunder. For the purposes of this section, the members who voted at the meeting or who executed the agreement in writing shall constitute one party under the petition for arbitration. If the arbitrator certifies the recall as to any director or directors of the board, the recall will be effective upon mailing of the final order of arbitration to the association. The director or directors so recalled shall deliver to the board any and all records of the association in their possession within 5 full business days after the effective date of the recall. (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. (f) If the board fails to duly notice and hold a board meeting within 5 full business days after service of an agreement in writing or within 5 full business days after the adjournment of the member recall meeting, the recall shall be deemed effective and the board directors so recalled shall immediately turn over to the board all records and property of the association. (g) If a director who is removed fails to relinquish his or her office or turn over records as required under this section, the circuit court in the county where the association maintains its principal office may, upon the petition of the association, summarily order the director to relinquish his or her office and turn over all association records upon application of the association. (h) The minutes of the board meeting at which the board decides whether to certify the recall are an official association record. The minutes must record the date and time of the meeting, the decision of the board, and the vote count taken on each board member subject to the recall. In addition, when the board decides not to certify the recall, as to each vote rejected, the minutes must identify the parcel number and the specific reason for each such rejection. (i) When the recall of more than one board director is sought, the written agreement, ballot, or vote at a meeting shall provide for a separate vote for each board director sought to be recalled.

SureshD

Posts:0

05/01/2010 2:10 PM
FWIW I found this on a Naples newspaper site, Q & A section: Q. We are not under FS 720; however, our documents say we are a homeowner association under FS 617. Our bylaws provide for a quorum of the members of the board to hold a board meeting. Our bylaws also require that Robert’s Rules govern the conduct of meetings. Some of our directors meet with committee meetings and in some situations there is a quorum of directors present. Is this considered a board meeting? T.F. St. Petersburg A. Homeowner associations now have their own statute, FS 720. A few years back they were governed by FS 617.300. The state split FS 617 to form the HOA Act. If you look at FS 720 you will see that the first chapter starts with FS 720.300. Regardless of your documents, you now fall under FS 720 along with other statutes. As to Robert’s Rules, most people misunderstand the procedures. Robert’s is not rigid but allows association boards to approve their meeting policies. One of the best examples is many people say the president cannot vote. False as Robert’s does not say anything about the present voting or making motions. The president should vote on all motions, not just to break a tie. All current statutes can be looked up at www.leg.state.fl.us. FS 617 defines how any business, including associations, will operate. You should have an odd number of directors and they select the officers. Anytime a quorum of directors are present at a meeting to discuss association business or operations, it is considered a board meeting and must have a 48-hour notice along with other requirements. I recommend that you review the latest statutes, both FS 617 and FS 720. It was found here: http://www.naplesnews.com/news/2010/feb/06/richard-white-most-times-association-documents-do-/?print=1

SureshD

Posts:0

05/01/2010 2:22 PM
Further web "skimming" has led me to believe that 720 has priority if there is a conflict with 617 or any other statute regarding HOAs specifically. Again, just MY opinion... ...looking forward to other's if they have them. Sam

DonnaS
(Tennessee)

Posts:5671

05/01/2010 2:44 PM
Suresh, 617 is the Not For Profit Corp Statutes under which your HOA is filed unless you are a new NFP corp.. You can use it IF your Articles are stated to be filed that way, which they should be. The key here is in what year was your HOA incorporated? Prior to the year 2000, Florida only had 617. After the year 2000, 720, was created so you would use 720 except in a case of prior to 2000.

SureshD

Posts:0

05/01/2010 3:17 PM
Thanks Donna, Been busy reading since my last posts and I don't think it's that "cut and dry", meaning based solely on time of incorporation. This language (below) from the beginning of 720 defining applicability (or not), while subject to our lay-person interpretation makes no such simple case. As I see it, they both apply at times but 720 clarifies some existing laws regarding NFPs that are HOAs. Otherwise there would be no reason to create it (720). 720.302 Purposes, scope, and application.-- (1) The purposes of this chapter are to give statutory recognition to corporations not for profit that operate residential communities in this state, to provide procedures for operating homeowners' associations, and to protect the rights of association members without unduly impairing the ability of such associations to perform their functions. (2) The Legislature recognizes that it is not in the best interest of homeowners' associations or the individual association members thereof to create or impose a bureau or other agency of state government to regulate the affairs of homeowners' associations. However, in accordance with s. 720.311, the Legislature finds that homeowners' associations and their individual members will benefit from an expedited alternative process for resolution of election and recall disputes and presuit mediation of other disputes involving covenant enforcement and authorizes the department to hear, administer, and determine these disputes as more fully set forth in this chapter. Further, the Legislature recognizes that certain contract rights have been created for the benefit of homeowners' associations and members thereof before the effective date of this act and that ss. 720.301-720.407 are not intended to impair such contract rights, including, but not limited to, the rights of the developer to complete the community as initially contemplated. (3) This chapter does not apply to: (a) A community that is composed of property primarily intended for commercial, industrial, or other nonresidential use; or (b) The commercial or industrial parcels in a community that contains both residential parcels and parcels intended for commercial or industrial use. (4) This chapter does not apply to any association that is subject to regulation under chapter 718, chapter 719, or chapter 721 or to any nonmandatory association formed under chapter 723, except to the extent that a provision of chapter 718, chapter 719, or chapter 721 is expressly incorporated into this chapter for the purpose of regulating homeowners' associations. (5) Unless expressly stated to the contrary, corporations that operate residential homeowners' associations in this state shall be governed by and subject to chapter 607, if the association was incorporated under that chapter, or to chapter 617, if the association was incorporated under that chapter, and this chapter. This subsection is intended to clarify existing law. The key for ME is: "and this chapter", right above this sentence and the last sentence of paragraph (5). Thanks again for you efforts... Sam.

CarolF
(Florida)

Posts:212

05/02/2010 11:06 AM
Today the following information was in the Richard White column at Naplesnews.com Q. Because our floundering economy is taking a toll on the housing market, we find an increasing number of homes in our community in disrepair. We are a deed-restricted residential not-for-profit community under FS 617, but are not currently organized under FS 720. We feel that membership in the local HOA is not a mandatory condition of parcel ownership and the HOA does not have authority to impose liens when owners repeatedly violate local deed restrictions. As a result, our board is considering reorganization under the provisions of FS 720. What is the threshold of support we need from the members to make this change? Does ownership alone qualify as a vote in good standing? What is your suggestion? —W.G. St. Petersburg A. Take a close look at FS 720. You will see that the first chapter starts with FS 720.300+. Several years back, HOAs did not have a specific statute. They used FS 617.300+. A few years back the state split FS 617 to form the HOA Act and did not renumber the new act. Therefore, you automatically fall under the new act. There is no vote needed and you are now under FS 720. You have enforcement powers found in your documents to enforce rule violations. You appear to be an older community and your articles still reflect the old statute. There is no need to amend or vote in the change as you automatically fall under FS 720. I would suggest that you seek help and education to bring the operational education up to current laws. Become involved in CAI. The national Web page is www.caionline.org and there are local chapters throughout the state.

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