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Subject: Active Recall of BOD & Bylaw Changes
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Author Messages
MicheleB7
(Florida)

Posts:21


11/06/2020 2:01 PM  
Our HOA is in chaos. An owner went around door to door and told members lies (their words not mine) to get them to sign what they thought was a petition to (pick one of the following items as each owner was told something different) fire the management company, fire the attorney, reduce HOA dues to $30 per month, grant kayak access in an area the docs state cannot be done, put in a community pool or a park for the children in the roundabout in the middle of the development. Owners stated that the person with the petition placed a piece of paper over the top of the petition so only numbered lines and member signatures could be seen. Once this recall was sent to the current BOD, they chose to not fight it and all resigned so the new directors could take charge.

The owners did not want this, they felt deceived, used, and manipulated by the now new board and did their own proper recall of this new BOD to replace them with the old BOD members. The recall was served on the management company on Tuesday, 11/3 by a process server at noontime here in Florida. The board being recalled refuses to recognize the recall as being served properly as they don't have a copy of the process server's license or something signed by him and state they will not act on the recall until supplied.

There is a 5 full business day period for the recall to be either certified or rejected by the BOD and filed with the state to go to binding arbitration. On day 2 the BOD posted meeting notices for the BOD on Friday and annual members meeting to be held on Monday. They then removed those on day 3 and changed it to a BOD meeting on Sunday, an annual member meeting on Monday, and a BOD meeting to discuss the recall on Tuesday. Items on the agenda are to increase the number of directors from 3 to 7 and appoint the 4 new directors, to amend the bylaws so changes can only be made by all members instead of the BOD as they are currently. To change the term of the directors. This is to circumvent the active recall of the 3 current and only directors.

My question is in the state of Florida is it legal for directors who are actively being recalled to make these changes just so that they can put themselves back in power again? The owners have been through 2 recalls, one they were deceived about, and the other was one they started themselves to right the wrong and now the deceptive BOD is taking steps and making amendments to the bylaws so they can get back into power after the recall is certified.

Folks have said this is unethical and the sad part is one of the new directors currently is an attorney and it's hard to believe they would think this was wise. Seems they don't care what the owners/members want, they only want to be in power.
ChrisE8
(New York)

Posts:225


11/06/2020 2:07 PM  
Wouldn't the annual meeting have a minimum notice period, so the board couldn't quickly call one? Usually the minimum notice is at least 10 days.
AugustinD


Posts:4421


11/06/2020 3:25 PM  
Posted By MicheleB7 on 11/06/2020 2:01 PM
The owners did not want this, they felt deceived, used, and manipulated by the now new board and did their own proper recall of this new BOD to replace them with the old BOD members.
I am going to take you at your word that the recall was proper and pursuant to FS 720.

Say, why did you not look for some answers in FS 720? See http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html

I am also looking at your posts from September at https://www.hoatalk.com/Forum/tabid/55/forumid/1/postid/291678/view/topic/Default.aspx
Posted By MicheleB7 on 11/06/2020 2:01 PM
The recall was served on the management company on Tuesday, 11/3 by a process server at noontime here in Florida.
I am not sure whether I should applaud the fascinating timing of your group or boo it. It appears election day is a holiday in Florida. This may mess up the OP's day count.

Posted By MicheleB7 on 11/06/2020 2:01 PM
The board being recalled refuses to recognize the recall as being served properly as they don't have a copy of the process server's license or something signed by him and state they will not act on the recall until supplied.
Fascinating. FS 720.303 (10) says "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."

I think you should have sent the recall paperwork by certified mail. As a matter of fact, you all should re-send it thusly.

Alternatively you can do some more work; see if what the Board is saying about the service paperwork is true; and get the service paperwork properly filled out. Because if it is not properly filled out, the board actually has a legal obligation to ignore the recall.
Posted By MicheleB7 on 11/06/2020 2:01 PM

There is a 5 full business day period for the recall to be either certified or rejected by the BOD and filed with the state to go to binding arbitration. On day 2 the BOD posted meeting notices for the BOD on Friday and annual members meeting to be held on Monday.
Let's assume the Board received the recall paperwork on the first business day after election day (a holiday in Florida).
Day 0 = Wed Nov 4
Day 1 = Thur Nov 5
Day 2 = Fri Nov 6 (today)
Day 3 = Mon Nov 9
Day 4 = Tue Nov 10
Wed Nov 11 is a holiday.
Day 5 = Thur Nov 12

I think the OP is off one day but let's continue.

By my reading, the board is supposed to hold its meeting, to vote on certifying or not certifying the recall, by Thur Nov 12.

Florida statute 720 requires 48 hours notice for board meetings.
Posted By MicheleB7 on 11/06/2020 2:01 PM

They then removed those on day 3 and changed it to a BOD meeting on Sunday, an annual member meeting on Monday, and a BOD meeting to discuss the recall on Tuesday.
Did the Board give the required two weeks notice for the annual member meeting? See FS 720.306 (5).
Posted By MicheleB7 on 11/06/2020 2:01 PM

Items on the agenda are to increase the number of directors from 3 to 7 and appoint the 4 new directors, to amend the bylaws so changes can only be made by all members instead of the BOD as they are currently.
-- Which agenda, the board meeting's agenda or the annual meeting's agenda?

-- Please quote exactly what your Bylaws say about increasing the number of directors.

-- Please quote exactly what your bylaws say about amendments.

Posted By MicheleB7 on 11/06/2020 2:01 PM

To change the term of the directors. This is to circumvent the active recall of the 3 current and only directors.
I do not see their reasoning when it comes to circumventing the recall.

Regarding attorneys: As discussed in the thread I cited above, the one on your board is crooked. He is not going to give the board or any of you wise advice.
GenoS
(Florida)

Posts:4158


11/07/2020 1:36 PM  
Posted By MicheleB7 on 11/06/2020 2:01 PM
An owner went around door to door and told members lies (their words not mine) to get them to sign what they thought was a petition to (pick one of the following items as each owner was told something different) fire the management company, fire the attorney, reduce HOA dues to $30 per month, grant kayak access in an area the docs state cannot be done, put in a community pool or a park for the children in the roundabout in the middle of the development.

The owners did not want this, they felt deceived, used, and manipulated by the now new board and did their own proper recall of this new BOD to replace them with the old BOD members. The recall was served on the management company on Tuesday, 11/3 by a process server at noontime here in Florida. The board being recalled refuses to recognize the recall as being served properly as they don't have a copy of the process server's license or something signed by him and state they will not act on the recall until supplied.

I'm going to start with these. There's ample precedent in Florida that "unit owners are presumed to have knowledge of the contents of they sign and where they are unsure of a document's contents or ramifications they should refrain from signing same." see DBPR Arbitration Case No. 2004-02-6526. Saying "I was deveived" isn't going to get you too far.

Recall petitions in Florida don't have to be served by a licensed process server. In DBPR Case No. 2004-02-4696 the arbitrator said, "

"Arbitration case law has consistently held that where there is no dispute as to when the association received the recall agreement, the method of delivery is of no significance, as the law only requires formal service in order to determine exactly when the agreements were received."

Sending the recall petition via Certified Mail is good enough. Additionally,
Florida Administrative Code 61B-23.0028 (g) provides that,

"The written agreement or a copy shall be served on the board by certified mail or by personal service. Service on the board after 5:00 p.m. ... shall be deemed effective as of the next business day that is not a Saturday, Sunday, or legal holiday. Service of the written agreement on an officer, association manager, board member or the association’s registered agent will be deemed effective service on the association."

Rejecting a petition because it wasn't served by a licensed process server isn't going to fly and an arbitrator will laugh at that excuse for not accepting a recall petition.
GenoS
(Florida)

Posts:4158


11/07/2020 1:56 PM  
Sorry for the bad link above. Please ignore the red underlining portion. That's not a good link. The links to the DBPR case and the FAC are valid nevertheless.

Another good arbitration case to consider is DBPR Case No. 2016-00-8044 in which the arbitrator notes,

"Section 720.303(10)(g), Florida Statutes, authorizes Petitioner to file a petition for mandatory binding arbitration challenging the Association’s failure to act by not holding a meeting. The statute further provides that the review of the petition is limited to the sufficiency of service and the facial validity of the recall ballots."

They can't claim the petition wasn't received because it wasn't served by a licensed process server. That's not going to fly.
JohnC46
(South Carolina)

Posts:10130


11/07/2020 2:35 PM  
I can understand the original BOD saying the hell with it rather than fight it. The owners got what they deserved in the new BOD. Shame on the owners for being stupido.
GenoS
(Florida)

Posts:4158


11/08/2020 9:00 AM  
I usually try to find precedent for arbitration cases in Florida. They're pretty informative. The goal, of course, is to help HOA members out of a mess they're gotten themselves into. But I agree with JohnC46, too. Many of these messes start because of ignorance on the part of the Board, and by extansion the owners who are just as clueless. The result is "chaos" and until that can be dialed down an elevated risk of bad things driven by ignorance is to be expected.
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