The month of November is the time when voters in the United States get the opportunity to voice their approval or disapproval of their elected representatives. The members of a condominium or homeowner's association, however, can voice their displeasure at any time during the year by recalling the board. Florida Statutes for both condominium and homeowner’s associations permit the members of the association to remove any director from office, with or without cause, by a vote of a majority of the entire voting interests. Typically there is one vote assigned to each unit or lot in the community.
For condominium associations, a proposed recall can be either by a vote at a meeting or by written agreement. For homeowner's associations, a proposed recall can be by written agreement, and if permitted by the association’s governing documents, by a vote at a meeting.
There are specific procedures and time frames that must be followed and these are explained by the administrative rules adopted by the Department of Business and Professional Regulation (DBPR). It is extremely important that a board facing a recall follow these procedures. While following these procedures ensures that the board is not removed from office based upon a technicality, it does not guarantee that the board will survive the recall. Recall disputes, both condominium and homeowners, are handled by the Arbitration section of DBPR’s Division of Land Sales, Condominiums and Mobile Homes.
RECALL BY WRITTEN AGREEMENT
The most common form of recall is by written agreement. In general, a board typically discovers that a recall by the members is occurring when one of the association members serves or hands a board member a package of written agreements, or recall ballots, on which the members have voted to recall one or more members of the board.
Once the board receives or is served with the recall ballots, DBPR rules require that a series of steps must be taken. After receiving the recall ballots, the association must review the ballots received to ensure compliance with the recall rules of procedure. This is the single most important step in the recall process and must be completed prior to the board meeting at which the decision to certify or not certify the recall is held.
Many associations wait until after the board has met to involve their legal counsel; however, by this point there is little that the association’s attorney can do to ensure that the association has discovered all of the potential defenses available to the proposed recall. We strongly encourage any association to consult with legal counsel as soon as possible after being notified of an attempted recall for assistance in reviewing the recall ballots and complying with the procedural rules.
It is very important that all of the potential reasons for rejecting or disqualifying a recall ballot are discovered and documented prior to the board meeting to review the attempted recall. The minutes of the board meeting at which the board decides to contest the recall must identify each ballot rejected along with the reason for rejecting each recall ballot. With few exceptions, only those reasons upon which the board bases a decision not to certify that are reflected in the minutes of the board meeting will be considered during the recall arbitration.
Once the recall ballots have been received by the board, the board has five (5) business days in which to notice and hold a board meeting at which the board will decide whether to accept (certify) the recall, or to reject the recall effort. If the board certifies the recall, the recall is effective immediately and the recalled board member(s) must turn over to the board, within five (5) full business days, any and all records and property of the association in their possession. If the members of the Association recall less than a majority of the board, the remaining board members appoint their replacements. If the members recall a majority of the board, then the members of the association elect replacement candidates on the recall ballot. For purposes of recall, in computing the five (5) business days, do not include the day of the act from which the period of time begins to run and in the event the last day of the period is a Saturday, Sunday or legal holiday, the period shall run until the end of the next business day.
If the board rejects the recall effort, the board must file a petition for recall arbitration with DBPR, within five (5) full business days of the board meeting. With few exceptions, the failure to hold a meeting or to file a petition for recall arbitration within the required time frames will result in the recall of the board.
RECALL BY MEMBER MEETING
The second method of recall is by a vote at a special meeting of the members. The process of recall by member meeting differs significantly from the process of recall by written agreement and due to its procedural complexity is seldom used by the members of an association.
Instead of serving a board member with a package of recall ballots, a member will serve the board with a petition signed by a certain percentage of the members requesting that the association call a meeting at which the members will be permitted to vote to recall one or more members of the board. Once the board has received and verified that the required number of members have signed the petition, the board must notice and hold a meeting of the members. At the meeting the members will vote on whether or not to recall the board and then notify the board of the results. From this point forward, the procedures followed by the board in deciding whether or not to certify the recall are identical to those procedures listed above for recall by written agreement.
Once a petition for recall arbitration has been filed with DBPR, an arbitrator is assigned to review the petition to determine if a valid basis for challenging the recall has been alleged. The members voting in favor of the recall will be given an opportunity to submit written arguments and evidence in favor of the validity of those ballots rejected by the board and the arbitrator may require the parties to submit additional documentation in support of their claims.
Ultimately, the arbitrator will either issue a final order, or if disputed facts exist, the arbitrator will schedule and conduct a final hearing and then issue a final order. The final order will either certify the recall or will rule that the board was correct in challenging the recall effort in whole or in part.