Recall Procedure

Started by JamesB15 • 32 replies • 3164 views

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JamesB15 (Florida)
Posts: 87

Posted:

GlenL (Ohio)
Posts: 5,491

Posted:

James what can I say, sometimes the deposed do not go quietly into that good night but rather fight until the bitter end. All you can do is make sure all of your I'a are dotted and your T's crossed. It may mean the homeowners having to take them to court to be rid of them.

Studies show that 5 out of 4 people have problems with fractions

JamesB15 (Florida)
Posts: 87

Posted:

f) If the board fails to duly notice and hold a board meeting within 5 full business days after service of an agreement in writing or within 5 full business days after the adjournment of the member recall meeting, the recall shall be deemed effective and the board directors so recalled shall immediately turn over to the board all records and property of the association.

(g) If a director who is removed fails to relinquish his or her office or turn over records as required under this section, the circuit court in the county where the association maintains its principal office may, upon the petition of the association, summarily order the director to relinquish his or her office and turn over all association records upon application of the association

This section of Fl 720.303(10) 2f g seems to apply. What do you say?

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By JamesB15 on 03/03/2012 2:19 PM
f)

This section of Fl 720.303(10) 2f g seems to apply. What do you say?

It may mean the homeowners having to take them to court to be rid of them.

Studies show that 5 out of 4 people have problems with fractions

JohnC46 (South Carolina)
Posts: 14,265

Posted:

James

Tough love here.

The end game seems to be out smart/out bluff you and so far they have done so.

It is time for you to stop searching for cheap (out here), maybe wrong answers (out here), and engage the services of (AS IN PAY FOR) a professional.

Understand that I believe most lawyers are scumbags with the main difference being one is my scumbag, not yours.

JamesB15 (Florida)
Posts: 87

Posted:

Thanks for the advise. Actually I was looking for experiance. Seems like alot of us have the same challange. someone had to be successfull without spending a fortune. I'm hoping to make them quit spending money on attorneys not make them spend more of our dues.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

James,

If the qualifying number of HOA members delivered a recall petition, it affects the business of the HOA organization. I can completely understand why the board would hire a lawyer to sort the issue or request arbitration. Remember, you served these officers as members of the HOA and not as private individuals, creating the legal obligation (but this can be a worthy expenditure).

What's sad is the effort taken to recall a board of directors when the energy could be put to progressive use in the community in conjunction with a board so disrespected it gets recalled only to cling to the "political power" of serving on an HOA, causing gridlock and expense to all dues payers.

Your effort sparked lawyers getting hired....consider it part of the investment made to reform your organization.

JamesB15 (Florida)
Posts: 87

Posted:

Again it was not a duley noticed meeting. It was a meaningless illegal gathering of select board members to circumvent the law and covenants. Two members and the whole board membership were left out. Of course they know this. The more they get away with the further they go. The statute says we can go to a state attorney if they don't comply with the duley noticed meeting within 5 business days.

JamesB15 (Florida)
Posts: 87

Posted:

Correction- 2 board members and the whole membership were left out

GlenL (Ohio)
Posts: 5,491

Posted:

James believe me when I say we can feel your pain but WE can't do anything about it. You and your fellow homeowner's are going to be the ones to rid yourselves of these Board members. It might take the H/O's chipping in to hire an attorney to present your side to a judge to order them to go or you can wait for arbitration. In the mean time it appears these folks have no intention of going anywhere. All you can do is make sure you're doing things correctly and document EVERYTHING!!!

On a side note I would make it known to these directors that the homeowners intend to go after them personally to recoup the money that is spent to recall them and POLITELY remind them that neither the corporate shield nor D&O Insurance will protect them if they deliberately violate the law.

Studies show that 5 out of 4 people have problems with fractions

JayP3 (Florida)
Posts: 154

Posted:

. We served our board president recall ballots for around 60% of the memner votes. Three business days later the President called a meeting that was not duley noticed. We had 5 hours notice if you checked your email when you woke up. One board member was not contacted. We were given no reason for the special meeting. We were recalling 4 of 9 board members but one resigned. At the meeting a recalled member made a motion to take it to arbitration. The three board members and their two cronies voted for it. There was no approval of spending the funds to do this. They also said they were hiring an attorney. (Our 3rd law firm). There was no mention of the actual ballots and they declared they had five more business days after there meeting. I don't see why the members should get stuck with another attorney fee for these 3 and add to that no spending was authorized. I also don't see where this 5 extra days comes from. I have read Fl.720.303(10). What is the end game? The three that are recalled should not use members money without approval.

James,

Starting with the end of your post above...

The costs associated with a recall will be borne by the membership unless/until a judgement is found in the HOAs favor. The some costs can be recovered from the loosing party.

It is the HOAs responsibility to resolve legal matters with due dilligence and vigor.

---------------------------

Are you condo, HOA, trailer park, co-op? I'll assume HOA...

You said the meeting notice was sent via email. Have you given your consent to be notified in this way? (You still should have had 48hrs. regardless of notification method.)

Typical recall in a Florida HOA:

Do you not have an accounting firm for your dues or an HOA attorney on retainer, or property manager, etc.?

After you got 60% of the membership to fill out the state reccomended recall ballots correctly they should have been served (Hand delivery or CERTIFIED MAIL to one of them OR some other REGISTERED AGENT of the corporation. If you have none then to the Secretary in the same manner. If delivered by hand, have the party being served INITIAL and DATE the ballot submission cover letter.

NOW the clock is ticking as there has been documented proof the recal was 'served' and when.

Next, the HOA Lawyer should have been sent and reviewed the ballots to determine if the recall effort is valid.(check the number of ballots, the manner in which they were filled out, if any items are missing, etc.) This would STOP the whole recall process if there were ballot issues. ( details, details

)

If the lawyer believes the recall is valid, the BoD has 5 business days to call a meeting. (w/48hrs. notice)
There they will (should) compare the completed ballots to property records for proof of ownership, examine addresses, signatures, and any other thing to try and disqualify ballots.

If they [BoD] feel they can disqualify enough ballots to stop the recall they have Failed to CERTIFY the recall and MUST FILE for MANDATORY ARBITRATION. Then a mutually agreed upon 3rd party will examine the ballots, may ask for additional 'evidence' and will render a binding final order. The prevailing party is entitled to seek compensation for the proceedings.

If they certify the recall then it is DONE as the ballots have requested.

If they fail to call the meeting in 5 days then the recall is DONE by action of the law.

ALL details must be met with 100% precision or the effort stops there, regardless of what happened afterwards that was or may also be incorrect.

---------------------------------------------

Finally...

Trying to sue individuals for their actions as a group is VERY, VERY, difficult in a Florida HOA.

Don't even discuss it or make such threats as has been suggested.

You have to PROVE they KNEW they were WRONG.

BoDs are volunteer lay-people and will make mistakes.

PeterD3 (Florida)
Posts: 708

Posted:

Jay,

That worked for us.

But we made a mistake the first time.
The HOA lawyer reviewed the 'package' we sent our registered agent. He said there were errors on some so the recall failed due to insufficient ballots. He called it 'void ab initio'.

So in telling the BoD what was wrong we the recallers were also told. We corrected the mistakes.
We only had to correct a few ballots so we went back to those people and they filled out another correctly. We then resubmitted the ballots, the lawyer approved, the BoD never called a meeting so it was done by action of the law.

JamesB15 (Florida)
Posts: 87

Posted:

Jay,

We are a HOA. The main thing i don't understand is when does the 5 days start and when does it end. It sounds as if some are saying once the meet they get another 5 days. I thought it was the 1st business day after they were served. As fer as the lawyers are concerned to examine the ballots I don't see that extending the 5 days. If they held a duley noted meeting as required they could reject ballots at that meeting or certify the recall. The members have a right to attend this action. Also there are requirements that must be in the minutes of the duly noted meeting. I understand all this must be done within the 5 business days. After this is done they have 5 days to file for arbitration.

JayP3 (Florida)
Posts: 154

Posted:

The clock starts on the day after they were served. The day after is day '1'. It is enough time for lawyer review and schedule and notice a meeting.

Not sure how long to file for arbitration if recall is not certified but it is timely and specified.

If you're not sure of the ballots validity or any other proceedural issue with the serving of the recall you may wish to start over.

The valid/good ballots you have submitted are good for ONE re-submission if within 90 days (I think it's 90 days it may be less but not more as I best recall.

JamesB15 (Florida)
Posts: 87

Posted:

I'm not worried about the ballots and apparenty the recalled members aren't either. If they don't reject ballots at an open properly called meeting they are all good. There is no longer time for that to happen. Since there was no meeting either way(except for the gathering they had which doesn't count) No rejection of ballots etc. This recall will be official according to 720 and the day after we can go to the state attorney and ask them for assistance . Isn't this what it says? Thanks

JamesB15 (Florida)
Posts: 87

Posted:

(g) If a director who is removed fails to relinquish his or her office or turn over records as required under this section, the circuit court in the county where the association maintains its principal office may, upon the petition of the association, summarily order the director to relinquish his or her office and turn over all association records upon application of the association

JamesB15 (Florida)
Posts: 87

Posted:

Correction

f) If the board fails to duly notice and hold a board meeting within 5 full business days after service of an agreement in writing or within 5 full business days after the adjournment of the member recall meeting, the recall shall be deemed effective and the board directors so recalled shall immediately turn over to the board all records and property of the association.

(g) If a director who is removed fails to relinquish his or her office or turn over records as required under this section, the circuit court in the county where the association maintains its principal office may, upon the petition of the association, summarily order the director to relinquish his or her office and turn over all association records upon application of the association

SimoneT (Florida)
Posts: 116

Posted:

Hello:

About two years ago, we had something similar happen. First of all, how do we go about getting Recall Ballots? Signatures were collected for Recall Ballots on four of the board members, three of them resigned and brought in their friends in their place, and the board second this decision. What happens to the Recall Ballots at this point? Do you continue getting all your signatures, or nothing can be done since three of them resigned? If one continues with acquiring the signatures, what happens after that? Can someone explain this process please?

JayP3 (Florida)
Posts: 154

Posted:

James,

From a distance it seems the HOA did not properly execute a meeting to certify the recall. This would seem to make it automatic.

HOWEVER if any thing is wrong with the ballots or other protocols not met in the serving process the effort could be deemed defective and their meeting issues would be moot.

That's about all one can say in the context of this forum.

JayP3 (Florida)
Posts: 154

Posted:

Simone,

Recall ballots are available here: http://www.myfloridalicense.com/dbpr/lsc/documents/recall_agreement_ballot.pdf

Be sure to read and follow directions CAREFULLY!

Once someone resigns a recall is moot. The ballots are good for one more submission (I think within 90 days) but the person is gone so the ballots are useless.

A recall meeting is a special meeting. The recall is the first order of business. Recall ballots contain a place for electing replacements. The same form used to remove directors can replace them. This is to try and prevent directors facing recall to install a 'puppet' board by using a tactic of resign and replace.

I

JayP3 (Florida)
Posts: 154

Posted:

Please note you must be recalling a simple majority of the BoD to specify replacements and the replacements must have voted FOR the recall.

Sorry

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi James:

If they are going through the arbitration then the following potentially is what is being followed:

720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.—

(10) RECALL OF DIRECTORS.—

(d) If the board determines not to certify the written agreement or written ballots to recall a director or directors of the board or does not certify the recall by a vote at a meeting, the board shall, within 5 full business days after the meeting, file with the department a petition for binding arbitration pursuant to the applicable procedures in ss. 718.112(2)(j) and 718.1255 and the rules adopted thereunder. For the purposes of this section, the members who voted at the meeting or who executed the agreement in writing shall constitute one party under the petition for arbitration. If the arbitrator certifies the recall as to any director or directors of the board, the recall will be effective upon mailing of the final order of arbitration to the association. The director or directors so recalled shall deliver to the board any and all records of the association in their possession within 5 full business days after the effective date of the recall.

However, the members recalled less than the majority of board, so the following could be applicable:

(e) If a vacancy occurs on the board as a result of a recall and less than a majority of the board directors are removed, the vacancy may be filled by the affirmative vote of a majority of the remaining directors, notwithstanding any provision to the contrary contained in this subsection or in the association documents. If vacancies occur on the board as a result of a recall and a majority or more of the board directors are removed, the vacancies shall be filled by members voting in favor of the recall; if removal is at a meeting, any vacancies shall be filled by the members at the meeting. If the recall occurred by agreement in writing or by written ballot, members may vote for replacement directors in the same instrument in accordance with procedural rules adopted by the division, which rules need not be consistent with this subsection.

Members may have recalled, but the remaining Board potentially chooses the replacements.

The arbitration information under above referenced 718.1255 can be found here: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0718/Sections/0718.1255.html

At least in this section it states that election disputes are expedited per:

(5) DISPUTES INVOLVING ELECTION IRREGULARITIES.—Every arbitration petition received by the division and required to be filed under this section challenging the legality of the election of any director of the board of administration must be handled on an expedited basis in the manner provided by the division’s rules for recall arbitration disputes.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Janet

As you said:

"""Members may have recalled, but the remaining Board potentially chooses the replacements."""

I believe many get so wound up wanting to get rid of someone that they do not look past their noses. Like OK...recall me and another BOD Member...and the remaining BOD majority appoints our spouses to fill the vacanies. Wow...lot of good you did recalling us.

Kind of like the dog chasing the car and catching the car. OK...now what is next?

Even when what is next is outlined...as is in you Section (e) of your post....few are prepared. They win every battle, but lose the war, and never understand how they lost the war.

JamesB15 (Florida)
Posts: 87

Posted:

Hi Janet

Thanks for your post. I agree with your premise if the the board had first followed step 2(720.303(10) 2

2. 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. At the meeting, the board shall either certify the written ballots or written agreement to recall a director or directors of the board, in which case such director or directors shall be recalled effective immediately and shall turn over to the board within 5 full business days any and all records and property of the association in their possession, or proceed as described in paragraph (d).

If you have a duly noticed meeting within 5 business days. That hasn't happened. There was no duly noticed meeting. 145 members have signed and this this group has a private pow wow with no notice to any members of the association. Two board members also did not know of this special meeting.

My point is you can't skip the statue you don't want to follow and go to one that fits your purpose. Holding the duly noticed meeting would allow them to go to (d)but since they did not they go to (f)

(f) If the board fails to duly notice and hold a board meeting within 5 full business days after service of an agreement in writing or within 5 full business days after the adjournment of the member recall meeting, the recall shall be deemed effective and the board directors so recalled shall immediately turn over to the board all records and property of the association.

In that case we take it to circuit court and have them removed.

JamesB15 (Florida)
Posts: 87

Posted:

John, You will never win anything if you keep your head in your private part. Please refrain from giving help until you know what your talking about.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Hi John:

You are correct in that many homeowners will reference the beginning of the statute when recalling and not realize that if you do not recall the majority then potentially the board and not the members will be voting for any replacements. They then end up getting a last minute surprise.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By JamesB15 on 03/04/2012 4:53 PM
In that case we take it to circuit court and have them removed.

Hi James:

If they did not have a proper meeting then that would be an option ... or maybe the arbitrator will take care of the situation if that avenue is pursued. I understand it is frustrating because I've been there myself with no proper meetings and individuals doing as they chose with self-serving changes. That is why our homeowners all pitched in and took them to court after making every attempt to reason and showing that was potentially illegal actions. Your group will need to weigh the pros and cons then make your decision on how to proceed.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JamesB15 on 03/04/2012 4:58 PM
John, You will never win anything if you keep your head in your private part. Please refrain from giving help until you know what your talking about.

James

What made you assume I was helping or even taking to you. Was not my post addressed to Janet?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JamesB15 on 03/04/2012 4:58 PM
John, You will never win anything if you keep your head in your private part. Please refrain from giving help until you know what your talking about.

James,

That was uncalled for.

JamesB15 (Florida)
Posts: 87

Posted:

I believe many get so wound up wanting to get rid of someone that they do not look past their noses. Like OK...recall me and another BOD Member...and the remaining BOD majority appoints our spouses to fill the vacanies. Wow...lot of good you did recalling us.

Kind of like the dog chasing the car and catching the car. OK...now what is next?

Look, I am not wound up. If this guy wants to talk down to people and it's ok with you fine.No one could actually answer the question anyway. This board is screwing me out os alot of money. They could not care less about me or anyone. I take it serious which is why I ask for help on this site. If this guy can't figure that out he has a problem.

JanetB2 (Colorado)
Posts: 4,219

Posted:

James:

You need to understand that sometimes we will joke with each other and John was joking and trying to give me a hard time not yourself. LOL … you should see some of the past posts where we had fun discussing snakes … I did not take it personal and understand it was all in having a little fun. BTW John I did not get around to posting any pictures.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JamesB15 on 03/05/2012 1:19 PM
No one could actually answer the question anyway. This board is screwing me out os alot of money. They could not care less about me or anyone.

Ok let me try.

As I understand it, you submitted your recall paperwork.

The Board called an emergency executive session to discuss this recall (executive session because of the potential litigation and an emergency meeting because the issue couldn't wait until the next scheduled meeting). I know that notice requirements are different for emergency meetings than for regular meetings but I have not looked them up.

Per your post, the board discussed this issue and chose to contact an attorney to see what options are available. This would be standard procedure. Granted, the ideal would be for the board to read the notice and step down. However, there is no requirement that the board does the ideal.

As Glen said, the members may need to take the Board to court to force them to accept the recall. For this, you need to consult with a local attorney. I would suggest one who is versed in corporate law.

I agree that it a pain for the membership to have to foot the bill for the recall and the Boards defense of the recall. I do not know if the D&O insurance would be applicable here or not. Even if it is, the premiums may go up for future coverage. This is why many on this board recommend against going to court or to at least look at other options before going to court.

JamesB15 (Florida)
Posts: 87

Posted:

Apparently we have a board that breaks so many rules I can't get past square. Forget about a emergency meeting there is no such animal. It might seem like there should be but ther isn't. Once the ballots are served you have 5 business days to properly notice and hold a meeting . That would mean the board members being recalled would place notice of special meeting in a conspicuous place and contact all board members. Our special meeting requires 3 day notice. we were notified by email at 8am the day of the meeting. The board then held their gathering minus 2 board members who said they did't know how to contact.No members knew of the meeting and there was no notice as we checked each day. Today low and behold there was a backdated notice at the clubhouse. The problem was it was still for 48 hours and agin it needed to be 72 hours . (even though it was 4 hrs) hours I guess they haven't read the bylaws. At the gathering of select board members they briefly digust how they felt it wasn't right and voted among themselves to take this unfair recall by 60% of the members to arbitration. That was it . Slam Bam No ballots were rejected or even counted. As they rose to leave they said they would use the same attorney they used a couple years ago. We already have 2 on retainer one suing me. Now what gives these 3 idiots the power to use our money? This is the third time in the past 4 months they have dipped into our funds without as much as a vote or or an amount they need. All they had to do was complete the binding arbtration form and send it back with the fee around $250. That is why the state made it simple. This HOA is a scam. I mean it. They haven't taken the time to even try to understand the ccr's just hire a lawyer on pay someone to do your thinking. The funny part again is 145 votes. They could be the only 3 in the HOA left (253 to 3} and they would still be going to an attorney telling him how screwed up the 253 members are and we'd have to pay. There is no way any non profit corporation can get away with this total lack of oversight and what is the answer? Hire a lawyer!

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