FL 720 vs. HELP: HOA By-Laws vs. FL Statute 720 - RECALL of BOD Member - which one takes precendence?

Hi folks,

Thanks in advance for possibly answering a 'challenging' question for me regarding the recalling a BOD member from our HOA.

First, I've read through FL's HOA §720.303(10).(a)1, which states: "Regardless of any provision to the contrary contained in the governing documents, subject to the provisions of s. 720.307 regarding transition of association control, any member of the board of directors may be recalled and removed from office with or without cause by a majority of the total voting interests."

Second, Our own HOA By-Laws state (and I'm paraphrasing here...): "Any Director elected by Owners may be removed, with or without cause, by two-thirds of vote a quorum of the Association at a meeting. (Note: A quorum is defined in our By-Laws as the presence of Owners in person or by proxy representing 20% of the total votes eligible to vote in the Association).

Third: Our Association has a total of 600 Owners who are voting members

Fourth: Our By-Laws state that if there any conflicts between provision of FL law, Articles of Incorporation, Chart, and our By-Laws, provisions of FL Law shall prevail.

Given Above:
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- Per FL Statute 720, we would need 301 Owners to vote / recall a BOD

- Per our By-Laws, we would need 120 owners to show up for a meeting and 2/3rd's of them (80+) need to vote out the BOD

Question:
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Given that our own our HOA By-Laws requirements/threshold for a recall/removal of a BOD member are less stringent, would they apply and override FL Statute 720? Or regardless of what our By-Laws state, the FL Statute 720 takes precedence and we would have to get 301 people to accomplish this?

Can anyone clarify?

Thanks again!!!

In reading 720.306 quorum is 30% unless the Bylaws have a lower number. Quorum is 120 and 2/3 would be 81.

from 720 ...

"(c)1. If the declaration, articles of incorporation, or bylaws specifically provide, the members may also recall and remove a board director or directors by a vote taken at a meeting. If so provided in the governing documents, a special meeting of the members to recall a director or directors of the board of administration may be called by 10 percent of the voting interests giving notice of the meeting as required for a meeting of members, and the notice shall state the purpose of the meeting. Electronic transmission may not be used as a method of giving notice of a meeting called in whole or in part for this purpose."

Two methods are available, by my read:

1. By Special Meeting, then per quorum per your Bylaws

- to call the meeting: 10% x 600 = 60 members required to call the special meeting (unless your Bylaws state more stringent for special meeting to be called - ex: special meetings can be called by a majority vote of the Board per Bylaws in some communities)
- to get the quorum at the meeting 20% x 600 = 120 members
- then by 2/3 of the votes at the meeting: 66.67% x 120 = 80.04, so 81 members

OR,I think, by Florida Statute

2. By direct vote of greater than 50% of members = 0.5 x 600 = 300, so, 301 members

I am not persuaded that 720.303 (1) (c) overrides 720.303 (10) (a)'s "majority of voting interests" requirement. Note that the statute defines "voting interests" earlier.

720.303 (10) (b) explains how to recall without a meeting.
720.303 (10) (c) explains how to recall with a meeting. I think the (c) section does not undo the majority requirement of the (a) section.

I think these Florida law firm sites tend to back the majority requirement up:
https://www.floridahoalawyerblog.com/basic-recall-procedures/

http://www.ccfjfoundation.net/RECALLBOARD.htm

I parsed this quickly. If someone thinks otherwise, I am all eyes.

thanks AugustinD, too for your input. I actually had the same interpretation that you noted prior to making this original post, but being a 'novice' to this stuff, I defer to others who are a lot smarter than me. I will check out the links you provided.

And again, if any other folks with an opinion on this issue wish to provide an opinion, please kindly share/post.

MANY, MANY THANKS!!!

Augustin,

I’m not quite clear, still.

The first citation was from 2012 ... FS has changed a lot over the years, but I didn’t go back and check on this.

The second citation jumped straight to the 50% + one ... no mention at all of the ability to do so at a meeting, given their docs support this method.