Removal of BM

As a board member of 6 yrs I have done the most for the community and 2 BM and the CAM are making my life unpleasant because them want me off. They do not want to enforce some of the governing documents such as do not block the sidewalks a violation. We were told by our insurance co more and more lawsuits are been received by them, the agent tells us make sure you enforce your documents. I would appreciate your thoughts. 2017 is the start of a new term for me.
BellaM FL

I don't know about anyone else, but I need a few more details because you haven't really said anything I can express an opinion on.How many board members are there and why do you think the property manager and other board members want you off? And what does that have to do with your association insurance?

Blocking sidewalks is a major safety violation, I am quite sure your HOA nor your CAM wants to defend litigations from an able bodied person, let alone from someone that uses mobility assistance.

Fight the good fight and do what is right.

I'll add to that:

FS 720.306(9)(b) A person serving as a board member who becomes more than 90 days delinquent in the payment of any fee, fine, or other monetary obligation to the association shall be deemed to have abandoned his or her seat on the board, creating a vacancy on the board to be filled according to law.

Additionally, any decision by the DBPR under its binding arbitration authority may result in the removal of directors from an association's board.

As I understand it, along with unit owner or homeowner recalls, those are the only circumstances in which a director can be removed from the board, whether elected or appointed to fill a vacancy. I used to think that directors who were appointed (i.e. not elected) by the board could be removed by the same board that appointed them, but after reading several dozen DBPR arbitration decisions I no longer believe that is true.

For example, in Case 2014-03-7815 an HOA claimed its Bylaws allowed the board to remove sitting directors "for cause". The DBPR said no dice:

"Consequently, the Association’s By-Laws that purport to allow removal of members of the Board of Directors without following the procedures set forth in Section 720.303(10), Florida Statutes, are invalid."

In Case 2008-00-4566 an association's board voted to remove 2 directors who had missed 3 consecutive board meetings, as per their Bylaws. The DBPR said nope:

"The statute with respect to recalls in homeowner associations states a clear intent to limit the power of an association to remove a director," and, "In general, a community association board of administration has no authority to remove a board member by board action."

In 2010 a condo board tried to kick someone off and claimed it was within its power pursuant to FS 617.0808 (which governs FL corporations not-for-profit) which DOES provide that a member of a board of directors may be removed by, "... a majority of all votes of the directors, if the director was elected or appointed by the directors." But in Case 2010-03-4016 the DBPR rejected that argument and affirmed, once again, that only the provisions in FS 718 (for condos) and FS 720 (for HOAs) govern the removal of board members.

There is nothing, either in the Florida Statutes or in the online archive of DBPR arbitration decisions to indicate that directors who are appointed to fill vacancies are subject to a different set of rules. If anyone has anything that says different I would love to hear about it. We had a replacement director last summer appointed by the board and when she balked at signing a "loyalty oath" promulgated by the dictatorial president at the time, the president threatened to have her "kicked off the board". The woman resigned instead of standing up for herself and the crisis was averted, but it came very close to being an ugly situation. The president was furiously trying to find anything she could use to justify kicking a board member off. I would have helped write the recall petition myself if that had happened. So anyway, that's when I read up on the issue and did a lot of research on it.

There is a similar situation going on in the former HOA I lived in. They are three rogue directors, with the president actually falling just short of being involved in criminal activities.

Here are a few of the issues they are dealing with.

1. In 15 years the dues had remained the same or even lowered. In each of the past two years, they have raised the dues 20%.

2. The president has involved the Association in a $20M lawsuit in which they are working for the plaintiff and against the association. The case most likely will settle before going to trial and the president will be the deciding vote. The association's attorney has stated there is no "conflict of interest".

3. The president formed an Executive Committee which makes all the decision for the association. There are no minutes taken nor any mention of the action(s) they may or may not have taken. Two Board members are never allowed to vote on any major issues. The MC writes the minutes and then the president alters them and the president and two stooges approve them.

4. The president wants one of the Board members off the Board, so they created a new loyalty oath, which they says must be signed in order to remain (sound familiar). They even created new amendments to the Bylaws allowing them to censure or even throw them off the Board. The meeting to count the votes was two weeks ago. They were required to obtain 106 ballots, they received 56. The PM stated they would just keep the ballots and hope more come in, (open ended meeting), except the meeting was never legally adjourned, meaning that the vote counting stopped right there. The attorney stated they could continue collecting ballots. The attorney prepared all the voting material. It was filled with one error after another. The association has 317 members, they said 1/3 was 105. They stated proxies could be used, they can't. They stated that the meeting could be adjourned due to a lack of quorum. There is no quorum requirement. The amendment and the loyalty oath were never sent to the owner prior for a 30 day comment period.

5. For a number years the president was a seriously delinquent owner, some of those years serving as the former president of the Board. They rent rooms out to foreign exchange students along with a few of his friends in clear violation of the CCRs. They will also not go after delinquent owners, as they feel sorry for them.

I have been involved in association management for over 8 years. I have never seen nonsense to this extent. Many people either quote or refer people to one California website for legal opinions and reference. The attorney in question is a partner in that firm.

I linked to the wrong PDF for Case 2010-03-4016. The DBPR denial of the motion to dismiss based on FS 617.0808 is -> here <-. It is for the same case.

I'm not aware of any more by statute, but the governing docs could possibly have more. Ours allows the board to replace a director who misses 3 consecutive board meetings.

You said there are five board members –two don’t like you, but what’s your relationship with the others? If they’re ok with you, that would make 3 votes to 2, so that could nullify the others, provided you can get them to see your side of things.

As for the property manager, someone should remind her she works at the pleasure of the board – I would expect her to make recommendations as necessary, but beyond that, property managers shouldn’t have any say whatsoever as to what rules or enforced or not. And why is she writing board meeting minutes – that’s your Board secretary’s job.

Board members are also elected or re-elected by the homeowners, so if it’s been four years and you were duly elected, I wouldn’t worry about those two – as Geno and LetA suggested, you make sure you do what you were elected to do and act in an ethical manner. That doesn’t mean these folks won’t continue to try and make your life difficult, but you can make their task considerably harder by forcing them to try and convince your neighbors why you need to be booted off (some people appreciate board members who try to enforce the rules consistently and fairly!)

Regarding rules enforcement, let’s face it – it’s necessary but a real pain in the ass for HOA boards. First you have people who love it when rules are enforced against their neighbors but scream holy hell when they get that violation letter in the mail and then come to meetings cussing and threatening lawsuits. Then we have board members who behave as if the rules apply to everyone except them – maybe your colleagues block the sidewalks more than others and don’t want to get called on it. That’s why Geno’s correct in saying the current board makeup may have something to do with a reluctance to enforce.

Then again, you still haven’t said how extensive the problem is. Are we talking about a few homeowners blocking the sidewalks or is everyone doing it? Does this happen all the time or once in a while? Is the blockage creating blind spots at corners that could cause accidents? Have you received complaints from lots of homeowners on this matter? I’m not saying enforcing this rule isn’t important, but it may be the board has other issues that require more attention at this time – are you sure you aren’t being a wee nit-picky?

And you still didn’t say what the association insurance has to do with any of this – did someone or several people sue the association over this issue or something else? If so, how much did it cost the association (huge increase in premiums, threats to being dropped, etc?) The prospect of people paying more in assessments because the board can’t or won’t do its job can be a real motivator to toss those board members off. That’s the message you may want to take to homeowners - failure to be consistent and fair in rules enforcement can lead to unnecessary costs in various areas.

You mentioned a private enforcement company was supposed to be hired – bring that up to your colleagues at the next board meeting (again, the property manager needs to shut her yap and pay attention to any subsequent instructions). Is the board hiring one or not? If so, when is the board issuing requests for proposals and when can the homeowners expect everything to be done? If a vote is taken and you’re outnumbered, you can always prepare a statement summarizing your concerns and ask they be added to the minutes (where everyone can see it).

Finally, you said you didn’t receive complete information regarding the general contractors – I hope you kept the emails so you can make copies and show them to everyone. Note who sent the emails and ask him/her directly in front of everyone what happened (hopefully there will be some homeowners there who will listen to all this and take notes).