What option do you have when your condominium association board has conducted its self in a manner that your community believes is not in its best interests? Depending on election terms and cycles you may not want to endure years of poor decision making or inaction. While the offending board decisions may not rise to the level of criminal action or breach of its fiduciary duty, as a group of unit owners, you just want them out! Florida condominium unit owners do have options. Section 718.112(2)(j) of the Florida Condominium Act states any board member can be recalled and removed from office with or without cause by a vote or written agreement of a majority of all voting interests. This blog will discuss unit owner options to recall condominium board members.
Recall By Meeting
Careful attention must be given to all notice and quorum requirements for a recall. A special meeting of the unit owners to recall a member or members of the board may be called by 10% percent of the voting interests giving notice of the meeting as required for a meeting of unit owners (i.e. 14 days), and the notice shall state the specific purpose of the meeting. Email may not be used as a method of giving notice for a recall. If the recall is approved by a majority of all voting interests (51%) by a vote at a meeting, the recall will be effective. Thereafter, the board must notice and hold a board meeting within five (5) full business days after the adjournment of the unit owner meeting to recall one or more board members. The recalled board member shall be recalled effective immediately upon conclusion of the board meeting, provided that the recall is facially valid.
Recall By Written Agreement
If the proposed recall is by an agreement in writing by a majority of all voting interests (51%), the agreement in writing or a copy thereof must be served on the association by certified mail or by personal service by process server. The Division Condominium maintains a form recall by written agreement document that should be used. The board must then notice and hold a meeting of the board within five (5) full business days after service of the agreement in writing. Such member or members shall be recalled effective immediately upon the conclusion of the board meeting, provided that the recall is facially valid. The recalled board member shall be recalled effective immediately upon conclusion of the board meeting, provided that the recall is facially valid.
With both the recall by written agreement or by owner vote, a recalled board member must turn over to the board, within 10 full business days after the vote, any and all records and property of the association in their possession. If the board fails to notice and hold a board meeting within 5 full business days after service of an agreement in writing or after the adjournment of the unit owner recall meeting, the recall shall be deemed effective and the board members so recalled shall turn over to the board within 10 full business days after the vote any and all records and property of the association.
If the board fails to notice and hold the required meeting or at the conclusion of the meeting determines that the recall is not facially valid, the unit owner representative may file a petition challenging the board’s failure to act or challenging the board’s determination on facial validity. The petition must be filed within 60 days after the expiration of the applicable 5 full business day period. The review of a petition by the Division of Condominium is limited to the sufficiency of service on the board and the facial validity of the written agreement or ballots filed.
A board member who has been recalled may challenge the recall action and file a petition pursuant challenging the validity of the recall. The petition likewise must be filed within 60 days after the recall. If the arbitrator determines the recall was invalid, the petitioning board member shall immediately be reinstated and the recall is null and void. A board member who is successful in challenging a recall is entitled to recover reasonable attorney fees and costs from the respondents.
The Division of Condominium will not accept a recall petition when there are 60 or fewer days until the scheduled reelection of the board member being recalled.
Having an understanding of the process and procedure for recalling a board member will allow unit owners to remove a board member whose conduct is not representative of the wishes and desires of the community.