RECALL BOARD OF DIRECTORS

HOMEOWNERS' ASSOCIATION

CONDOMINIUM ASSOCIATION

EDITED AUGUST 18, 2007

 

One of the easiest ways to create necessary changes in the leadership of the association is the recall of the board -- either recalling just certain board members or the whole board. This solution becomes more and more popular, because if done right it's often the fastest and least expensive way to create the necessary changes!

If done according to the guidelines, you can hardly fail if you use the forms supplied by the Division.

    

The named representative can be any owner in good standing, preferably knowledgeable about the recall provisions -- and should be computer knowledgeable. Lot of the documents are being exchanged as pdf files, if it goes to arbitration. It doesn't matter if the named representative is one of the replacement directors.

 

You need 50% + 1 vote to succeed with a recall.  Experience has shown, that you always lose a few for various reasons. To be on the safe side always collect a few to spare. 

 

And don't forget, always compare the names and signatures on the petitions with the latest membership roster, best printed out from the local Property Appraiser's website. Don't necessarily rely on the one you received from the board or management company. Often they are outdated -- sometimes we have even seen old lists handed out on purpose. That will later be used to challenge the recall. Don't ever forget: Association attorney and management company are often on the side of the sitting board – the board signs their paychecks! And attorneys for the board are only too happy to challenge the recall -- it's often the last paycheck from that association if the recall goes through!

   

Be careful and strictly follow the guidelines. If you read the Recall Arbitration Rulings you will find that some of the recalls didn't succeed because of tiny errors or plain oversights!

 

Qualified Representative

Parties to arbitration can choose to represent themselves or have a qualified representative present their case rather than an attorney. There are cases where mediation or arbitration parties represent themselves and are successful in their proceedings. It is important to remember that if you appear on behalf of another party, you must be either a Florida licensed attorney in good standing or have been designated as that party’s qualified representative and have completed and submitted the qualified representative form to the Division.

 

Here are the official guidelines issued by the DBPR Arbitration -- please read carefully:

    

SAMPLE WRITTEN RECALL AGREEMENT INSTRUCTIONS

To recall and replace board members listed on the recall agreement, please follow the steps below:

(1)   In Block A on the attached form, place a check mark on the "Recall" line next to the name of each board member you wish to recall and remove from the board. Place a check mark next to the board member's name on the "RETAIN" line if you are voting for the board member to remain on the board.

(2)   Place a check mark next to the names of the candidates in Block B who you wish to replace the recalled board members OR you may write in your own choices. DO NOT VOTE FOR MORE THAN A TOTAL OF the NUmber of directors sought to be recalled. This includes voting for persons listed, write in votes, or a combination. The ballot for replacement board members in Block B should be included and filled in on the written agreement only if a majority or more of the board members are sought to be recalled. Where a majority or more of the board members are recalled, the owners have the right to name replacement board members. If less than a majority of the board is recalled, the remaining board members have the right to appoint replacements.

(3)   In Block C, print your name and unit number in the space designated. Sign the agreement in the space designated. This will affirm that you are authorized to cast the vote, in the manner required by the documents. If your unit is owned by more than one person, your documents may require that a voting certificate be filed with the association designating which owner has the authority to cast votes on behalf of the unit. If your documents require a voting certificate and one has not been filled out and delivered to the association, your vote may be rejected.

(4)   Important Note:  To ensure that your signature is official, you may optionally have someone else sign as a witness.  This is not necessary in order for your ballot to be acceptable, but it is highly recommended, should someone dispute the authenticity of your signature or this ballot.

Return the executed agreement to the unit owners' representative named in the agreement in Block C.

   

Here are a few hints that you don't necessarily find in the guidelines:

    

1.) You can't pre-mark the check boxes.
2.) Compare owners who sign with property appraiser’s list. Only deeded owners may sign!
3.) When collecting signatures, always go in pairs, so there is a witness of what has been said and who signed!
4.) Remove majority of board in order to have a say in replacements.

5.) Never allow the originals of the recall petitions out of your hand, if not demanded by the arbitrator.

6.) Hire process server to serve COPIES of petition to president or secretary!

  

SERVICE OF PETITIONS

Here are some important tips:
1.) Make sure the process server gives you an affidavit stating exactly who was served at what date and time at what location and how many copies of recall petitions were served.

2.) Advise process server to serve only on Mondays through Thursdays between 2 p.m. and 4 p.m.  (Do not serve Fridays or on days before an official holiday.)

 

Weird rulings by Chief Arbitrator James Earl make it necessary to follow these instructions. Earl and some of his fellow arbitrators have ruled that the wording in the statutes: "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," doesn't really mean 5 -- it can actually mean 6 or even 7 -- according to Earl.

   

For many years it was a general understanding that the day of service doesn't count, but then every business day counts in full -- up to 5. Bur with Earl’s weird interpretations, cheered on by some attorneys of the big law firms who missed their deadlines, he argued (Pine Island Bay Homeowners' Association [2009-01-1842]) that not only the Friday (Petitions were served at 9:45 p.m.) doesn't count, but neither does the Monday -- meaning that the Tuesday is the first day that counts as a full business day! Amazing "logic"?

  

But his rulings go even further. Statutes say: "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."
  

Until Earl took over everybody was under the impression that before means before.  Earl changed the meaning of the word “before” and came up with his own interpretation of the word before: If the petitions are served on a Friday after 5 p.m., the recalled board members have until Monday night to collect rescissions. Actually -- that's totally opposite to the wording and the legislative intent!

   

Before you fall victim to one of Earl's sick interpretations -- just avoid giving him the opportunity to be inventive.

  

Have your recall petitions served on Monday through Thursday between 2 p.m. and 4 p.m. -- not on a Friday or a day before an official legal holiday!


ATTENTION:

HOMEOWNERS SIGNING RECALL PETITIONS WILL NOT BE LIABLE FOR ANY LEGAL AND/OR ATTORNEY'S FEES -- AS LONG AS THEY DON'T HIRE THEIR OWN ATTORNEY TO REPRESENT THE HOMEOWNERS THAT VOTE FOR RECALL!

PLANTER'S WALK HOMEOWNERS' ASSOCIATION, INC. v. Homeowners Voting For Recall

DISCLAIMER: THESE ARE JUST GENERAL GUIDELINES TO DEAL WITH THE RECALL PROVISIONS OF FS 718 and FS 720. 

More detailed information, forms and arbitration rulings are on password protected sites.

You get passwords by sending e-mail to: info@ccfj.net 

In your e-mail please include: Name of Association, Number of Units/Homes and -- if available -- the name of the law firm your board retained. Thank you!


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