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.
Once the recall all attempt occurs, the association is required to hold a meeting to review the recall process. The association will be reviewing the recall to determine the facial validity of the recall attempt. The Division of Condominium can review recall challenges but only does so under limited circumstances. In this review, the Division really only determines whether the recall was properly noticed/serviced on the board and whether the process and votes are facially valid. This basically means that the analysis of a voting ballot will be viewed by looking at the “four corners of the ballot”. This blog will provide a summary discussion of the case law regarding facial validity of recall ballots.
- “Facial invalidity may be found when the total number of votes does not constitute a majority of the voting interests.” Los Portales Condo Ass’n v. Unit Owners Voting for Recall, Case No. 09-04-6402, Final Order (Oct. 28, 2009) 2009 WL 6383534.
- “The lack of the designation of a unit owner representative on the ballots is not a fatal defect.” View West Condo Ass’n v. Unit Owners Voting for Recall, Case No. 12-02-7479, Summary Final Order (Aug. 28, 2012) 2012 WL 4344496.
- Recall ballots “are invalid because the date the ballot was signed and the signature of the voter are cut off from the bottom of the ballots.” Shores of Panama Resort Community Ass’n v. Unit Owners Voting for Recall, Case No. 14-00-3018, Summary Final Order (June 25, 2014) 2014 WL 3544236.
- An owner’s “signature was an electronic signature. It was simply the owners’ full name in a cursive font. This is not a signature and the ballot is also invalidated.” Id.
- A recall ballot that is “so poorly copied that it cannot be deciphered in any respects” is facially invalid. Id.
- A recall ballot if “facially deficient” if the vote on the ballot “appears to have been erased.” Villages of Parkwood HOA v. Homeowners Voting for Recall, Case No. 15-04-9154, Summary Final Order (Jan. 11, 2016) 2016 WL 638277
- “The written recall agreement was facially invalid in that the ballots list more than one director for recall, but do not allow the person executing the ballot to indicate whether an individual director should be retained or recalled.” The Preserve at the Savannahs Condo Ass’n v. Unit Owners Voting for Recall, Case No. 2008-02-5933, Final Order (June 10, 2008) 2008 WL 6369764.
- Recall ballots are invalid if “they were signed by a person other than the person who owned the unit.” Crestview Towers Condo Ass’n. v. Unit Owners Voting for Recall, Case No. 2005-01-9941, Summary Final Order (June 14, 2005) 2005WL2045423.
- “Although the ballots followed the form approved by the Division, they are facially invalid. Every ballot was impermissibly pre-marked except for the portion of each ballot which identified the voter, showed the printed name of the voter, his or her signature, address and the date the ballot was signed. Most importantly, the “x” marks in the recall boxes on each of the 33 ballots were pre-marked. By pre-marking the ballot boxes with x’s it did not allow the unit owners an opportunity to mark their own ballots and decide for themselves who should be recalled and who should be retained. This is impermissible, it invalidated all of the cast ballots and the Association was correct in having decided not to certify the recall effort.” Silver Gardens Condo Ass’n v. Unit Owners Voting for Recall, Case No. 16-02-1209, Summary Final Order (July 5, 2016) 2016 WL 4939986.
- “None of the ballots contain boxes allowing homeowners to vote to recall or retain [the board members] individually, rather than as a group.” The FAC requires written recall agreements to list by name each individual director sought to be recalled and to provide spaces by the name of each director so that the person executing it may indicate whether that individual director should be recalled or retained. The Villas of Costa Del Sol HOA v. Homeowners Voting for Recall, Case No. 14-04-4950, Summary Final Order (Dec. 4, 2014) 2014WL7877542.
Conclusion
Having an understanding of the legal principles interpreting whether a ballot is facially sufficient 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.