Florida HOA Board Vacancies

Our HOA did not have a quorum at the Annual Meeting. We had 7 members. Three resigned. Four stayed on. At the next meeting the Board appointed three members to fill the vacancies. There was no notice of their going to fill the seats. They selected like minded folks, against a prior written disapproval by several homeowners who caught wind of it by accident. I have read many of the threads and I understand that in many communities they are allowed to do this under Statute 720. However, our Bylaws state: "Any vacancy occurring on the Board of Directors shall be filled by the Members in accordance with Articles of Incorporation and these Bylaws." It is my understanding that 720.306 states that Boards may only appoint vacancy if Bylaws don't say different. Our Bylaws do.

Susan from Michigan:
It is under the heading "Vacancy" .... It would be difficult to assume this only meant at the Annual Meeting...which we didn't technically have because there was not a quorum. It is the very first sentence with nothing stating it applies only annually.

Tim,
I have readi conflicting statements regarding lack of quorum. Many posts imply they needed to call for another election.

As for the Vacancy issue... Our Bylaws say "Any" vacancy...."shall"....

I agree this appears not the norm for HOA which is why it has become such a hot topic in our community with many folks feeling this was purposely placed in our Bylaws to protect homeowners from Board stacking....and staying for life...

Susan,

First let me apologize for not using your name.

Based on what your posting, I would tend to agree. However, without reading that section of the Bylaws and see the context it's written into I can only say that it might apply and it might not.

Susan,

For the purpose of discussion, lets go with what you are posting and the Bylaws specify members shall vote to fill any vacancies.

Per FL617.0809, the law gives the option to the Board. That section also does not defer to the governing documents. Therefore, I can see how there can be two conflicting interpretations.

1) The law plainly makes allows the board to chose how to fill the vacancy and since the law doesn't defer to the Bylaws - this section is the controlling document.

OR

2) The law makes it an option of the Board. The Bylaws remove that option by requiring membership vote. There is no conflict between the two because the Bylaws are only clarifying which option the Board is to use.

However, looking at FL720.306 9(c), that statute plainly defers to the governing documents when it specifies:

"Unless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by an affirmative vote of the majority of the remaining directors, . . ."

Therefore, if this issue was brought into arbitration, I suspect that the Bylaws would be ruled the controlling document.

Since your Board appears to be in disagreement with the interpretation, to challenge the Boards interpretation, someone within the membership would need to file for legal action. This will cost time, energy and money. Additionally, there are always unintended consequences with any action.

Hope this helps.

Tim

IF you have 51% community support you can recall the Directors very easily.