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Started by LaverneB • 7 replies • 625 views

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LaverneB (Florida)
Posts: 79

Posted:

Our HOA calls for a 7 member board. Since last Oct. (2018) it has been missing a board member. We had the elections this Jan. still they did not replace the member. Excuse? She/he is in another state training. What action can a homeowner take? If any?

SheliaH (Indiana)
Posts: 6,964

Posted:

You posted this three times, so I'll respond here.

You say the elections were last month - did anyone (including you) run for the spot? Did the missing board member say when he or she would return (why don't you know who this person is, by the way?) Is the board member's term up? Did he/she express interest in running again?

What do your documents say about board members missing meetings - ours say you're considered to have resigned if you miss three consecutive meetings. If you have something similar, how many meetings have been missed?

If the person's term isn't up and will be back this month, I would think you're ok, but if that person won't be coming back, did anyone (including you again) volunteer for the spot? If the board asked for volunteers, but everyone else sat and stared at each other or at the floor, it has to move on with what they have.

If, however, you'd like the spot filled and the board isn't doing things according to the documents (they may end up with six, but at least make an effort to fill the spot), you and your like minded neighbors should get together and call for a special election to fill the spot.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

LaverneB (Florida)
Posts: 79

Posted:

Yes there was seven people running for three seats. And yes I was one of them. The new president keeps telling me he/she will be back. I think it is unfair to people who want to sit on the BOD.I will check our amendments and by-laws. Thank you

LaverneB (Florida)
Posts: 79

Posted:

This board member missed at least 10 -12 meetings maybe more. The new board needs to replace her/him

GenoS (Florida)
Posts: 4,276

Posted:

Then why don't the others vote for someone else on the board to be president?

Many associations want to have some sort of rule that if a director misses X meetings then they're off the board. Florida doesn't allow that. The only way to get someone off the board is if a majority of total homeowners vote to recall them. (There are a couple of other technicalities that will remove a board member, but they're very specific and have to do with delinquent payments and felony charges.)

Getting someone off the board because they miss meetings, people don't like them, they don't play nice with others, they don't follow the rules, they break the covenants, etc. is not allowed in Florida. The homeowners vote them in and, in general, only the homeowners can vote them out.

The board, on the other hand, can elect a new president every week if they so desire.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

Geno - I can't find it - can you ref the chapter and sub numbers, please?

Interestingly, my voluntary HOA operates as close to the 720 requirements as possible, even though it is a Chapter 617 organization - we left the 3 meeting option in our last bylaws rewrite.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By GeorgeS21 on 02/08/2019 1:36 PM
Geno - I can't find it - can you ref the chapter and sub numbers, please?

Interestingly, my voluntary HOA operates as close to the 720 requirements as possible, even though it is a Chapter 617 organization - we left the 3 meeting option in our last bylaws rewrite.

You're probably fine, George, since you're not bound by FS 718 or FS 720. There are many arbitration rulings that affirm that the only ways to oust a director are those provided in the statutes. For HOAs, the wording is in FS 720.303(10) "RECALL OF DIRECTORS". It's virtually the same thing for condo associations.

DBPR Case No. 2016-02-9644 (Wilson vs Bayberry HOA) is relevant. Wilson claimed he was thrown off the board improperly. The HOA responded that it was following FS 617, the FL "Corporations Not For Profit" statute, instead of FS 720 and that the DBPR lacked jurisdiction to arbitrate FS 617 disputes. Here are some choice quotes from the 5-page decision.

Quote:

Posted By DBPR Case No. 2016-02-9644 on 01/09/2017

There is no dispute that Petitioner (and two other board members) were removed from the board for each having absented themselves from three consecutive board meetings.

Petitioner was improperly removed as director of the board for the Association by the members of the board and by this order the Association will be compelled to immediately reinstate him.

A board of administration in general has no authority to remove a board member by board action.

Since Section 718.112(2)(k), Florida Statutes, "provides for removal of a board member by recall by the unit owners, the board may not remove a board member, notwithstanding any provision to the contrary in the condominium documents purporting to authorize board removal by board action."

To give this authority to the board would infringe upon the right of the unit owners to elect a representative of their choice and would in a given case give a board the opportunity to substitute its judgment for that of the owners on the issue of representation on the board.

If a board may willy-nilly remove board members following a duly conducted election, the board has the ability to change the outcome of any given election in a fundamental way.

There are at least a dozen DBPR arbitration rulings in similar cases that all reach the same conclusion. The FL legislature gives the power to remove board members to the owners, not the board. Since condos and HOAs are creatures of statute, the statutes will govern completely where explicit and the explicit statutory ways to remove someone from the board trump any provisions to the contrary in the association's governing documents.

These DBPR arbitration rulings are all in agreement (these are the only ones I have locally on my hard drive, there are more):

93-0137
94-0531
2002-00-5718
2003-08-3347
2004-01-1153
2008-00-4566
2008-05-2798
2009-00-3712
2010-05-6098
2011-02-8696
2014-00-9523
2014-03-7815

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Basically our Bylaws say a Director can miss as many meeting as they want to asl long as they do not miss 3 in a row without informing us they will not be attending. If they miss 3 meetings in a row without a written excuse, they are automatically removed from the BOD no matter how they got on the BOD.

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