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02/14/13 It's The Law: Condo Recall Removes Board Members

It's The Law

Condo Recall Removes Board Members

(2/14/13)

Question:

I live in a condominium. The president of our association runs it like a dictator. Most of the owners want to get rid of him, but he is serving a two-year term. What can we do?

Answer:

Florida statutes recognize that from time to time condominium owners may regret electing one or more members to their board of directors. Section 718.112(2)(j), Fla. Stat. and provision of the Florida Administrative Code establishes the procedure for recall of members of the board of directors. The statute provides that one or more members of the board may be removed with or without cause by vote or agreement in writing of a majority of all voting interests.

For recall, you can pursue two options. The most common option is to obtain signature of a majority of all voting interest on a Recall Agreement. One or more owners solicit signatures until the required number of signatures has been obtained. The Agreement is served on the association by certified mail or by personal service. If a majority of the board is being recalled, candidates for replacement members must also be listed. If only a minority is being removed, no replacements need be listed as the remaining board members can appoint replacements.

The board of directors is to properly notice and hold a meeting of the board within five business days after receipt of the written Recall Agreement. At the meeting, the board either certifies the written Agreement to recall, in which case the member or members are recalled effective immediately, or the board determines not to certify the Agreement. If the board chooses not to certify the Agreement, it must file a petition for arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes within five business days. Once the arbitration proceeding is pending, the board members who are the subject of the recall continue in office.

If the board chooses to ignore the statutory requirement of a board meeting within five business days of receipt of the Recall Agreement, the directors are deemed recalled five business days from the date the association was served with the Agreement.

As an alternative to recall by written agreement, a special meeting of owners to recall a member or members of the board of administration may be called by ten percent of the voting interests. The owners calling the meeting must provide notice to all owners as required for a meeting of unit owners and the notice must state the purpose of the meeting. The notice must list by name each board member sought to be recalled and list at least as many eligible candidates for replacement board members as there are board members sought to be recalled if a majority of the board is sought to be recalled. Candidates for replacement board members are not listed when a minority of the board is sought to be recalled, as the remaining members of the board will appoint replacements. Unlike a normal condominium election, the notice must also state that nominations for replacement board members may be taken from the floor at the meeting.

If a board member is recalled, he or she must turn over all records and property of the association in their possession to the board within five business days of the effective date of the recall.

Recalls can be very divisive. In effect, they are an election to "unelect." That is a negative to an election to elect. The negativity of a recall can disrupt a condominium for years after the recall is completed, whether it is successful or unsuccessful.

Because of the disruptive nature of recall, I often counsel my clients to bide their time until the next election of directors, if that is a feasible option. If the problem directors are so disruptive or taking action that will be difficult to correct, more immediate action may be appropriate.

The procedure for recall is technical and defined by both statute and administrative regulation. If you intend to pursue recall of a director or directors, I recommend you hire an experience attorney to prepare documentation, advise as to procedure and make sure a successful effort is not undone by a technical deficiency in paperwork.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorris.com.