Q We are a group of majority unit owners in a condominium having problems removing the board of managers, who in our opinion are not complying with the bylaws. We, as the majority owners, have signed a petition to vote them out. We did everything necessary in accordance with the bylaws. However, a few members tried to influence the other board members to refuse the resignations collectively. We also sent the board of managers another petition to call for a special meeting for such action within a certain period of time, according to the bylaws. Again, the board has ignored the petition so far. The board has also tried to get the management company to be on their side. The management company tried to get a lawyer, claimed as one of the condominium, involved with this and tried to stop the removal of the board of managers. We are only unit owners, and cannot afford to get a lawyer to help us. What advice do you have for us? How else should we proceed? What recourse do we have?
—Dissension in the HOA
A “Florida condominium law provides for the administration of a condominium by a board of directors. The situation you have described is a recall (a recall is a way for owners to remove a director from the board),” says attorney Jay Steven Levine, founding shareholder and principal of the Levine Law Group, a full-service community association and litigation law firm with three Florida office locations. “The law provides that a majority of condominium voting interests can vote or agree in writing to remove a board member with cause or for no cause at all.
“Owners (at least 10 percent) can call for a special unit owners meeting in order to consider and vote on the recall of one or more board members. If the recall is approved by a majority of all voting interests at such unit owners meeting, then the recall vote is considered by the board at a properly noticed board meeting where the board either certifies the recall or not. If the board certifies the recall, then the recall is effective immediately. If the board does not certify the recall then the board must file a petition for arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes. The board member(s) sought to be recalled continue(s) to serve on the board (unless he/she resigns). The Division arbitrator resolves the recall in accordance with F.A.C. 61B-23.0027. If no board meeting is held within five full business days of the adjournment of the unit owners meeting then the recall is deemed effective immediately upon the expiration of the last day of the full five day business period.
“If the recall is by written agreement then the written agreement (the form is available on the Division website) is served upon the board and the board must call a meeting to determine whether to certify the recall within five full business days after service on the board. If the board votes to certify the recall, then the recall is effective immediately. If the recall is not certified or if a meeting is not held, then similar to calling a unit member recall meeting a petition for arbitration is filed or, in the case of a failure to duly notice and hold a board meeting, the recall is effective immediately. We find and prefer that recall by written agreement is a more efficient means of recalling one or more board members.
“In your situation, depending upon the procedures followed by the group of majority unit owners, a recall may have effectively occurred in which case the recalled director(s) are considered recalled from the board.”