Board Members Exceeded their term limit

TonyL6 (Florida)
Posts: 40

Posted:

We were supposed to have board of director elections in March. Three highly unpopular board members were sure things to lose to three new candidates, so the three out of five board members voted to cancel the meeting using the pandemic as an excuse. No new meeting is scheduled or likely to be scheduled. The three current board members up for re-election don't want to be voted out.

There is a lot of legal wrangling going on here, and we are aware of it. My question to which I would like to limit this discussion is this. Since the three board members have exceeded their two year term as of March 20th, are they still truly board members? The association attorney who is not too subtly propping these guys up, says they remain active board members.

So my question is, are they truly board members or in fact not because their term expired? This is Florida and it is an HOA involved. If you have an opinion one way or the other, it would be helpful if you can cite the statute (assume this is covered under Florida State Statute 720). I myself could find nothing about the expired board members legal status one way or the other.

PaulJ6
Posts: 990

Posted:

Unless they've resigned or been removed, they're still board members, but their positions are illegal, so anything that they approve, and their positions, can be challenged, legally.

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By PaulJ6 on 05/29/2020 1:20 PM
Unless they've resigned or been removed, they're still board members, but their positions are illegal, so anything that they approve, and their positions, can be challenged, legally.

Thank you for the response Paul. We would like to challenge them as you have suggested, but we would need to know under what legal statute that would be allowed in Florida. Any ideas? I would even take a court set legal precedent from anywhere in the USA.

KerryL1 (California)
Posts: 14,550

Posted:

We have some posters who are knowledgeable about FL, Tony, so let's hope they reply.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By TonyL6 on 05/29/2020 1:38 PM

Posted By PaulJ6 on 05/29/2020 1:20 PM
Unless they've resigned or been removed, they're still board members, but their positions are illegal, so anything that they approve, and their positions, can be challenged, legally.

Thank you for the response Paul. We would like to challenge them as you have suggested, but we would need to know under what legal statute that would be allowed in Florida. Any ideas? I would even take a court set legal precedent from anywhere in the USA.

I can't speak to Florida (and don't care about Karen's dig) but if your governing documents have specific requirements for term limits, then you'd have a breach of contract claim and would be able to sue to get "equitable relief"--a court could force them to step down. That applies in all 50 states.

PaulJ6
Posts: 990

Posted:

TonyL6, to add, in the court filing, you would just cite the specific provisions of the bylaws or other governing documents and would not need to cite to a statute in order to have a court throw them out. But if there is a state statute on point (perhaps, but any state statute likely just says that the terms of directors are described in the bylaws) then that's icing on the cake. A state statute is helpful, but not necessary, to throw them out.

Karen, please respond, Karen.

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By PaulJ6 on 05/29/2020 1:44 PM
TonyL6, to add, in the court filing, you would just cite the specific provisions of the bylaws or other governing documents and would not need to cite to a statute in order to have a court throw them out. But if there is a state statute on point (perhaps, but any state statute likely just says that the terms of directors are described in the bylaws) then that's icing on the cake. A state statute is helpful, but not necessary, to throw them out.

That's what I have believed all along, but the lawyer says, no the directors whose term has expired can continue to serve until an election. Our by-laws state an election must be held within the first 90 days of the year. Here is what Florida says: FL Statute 720.306(9)(a) - Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association.

I don't understand how the lawyer is saying these guys can remain in office. In fact, two lawyers have said it - the HOA attorney and an attorney for which I paid.

JohnT38 (South Carolina)
Posts: 1,631

Posted:

Quote:

Posted By TonyL6 on 05/29/2020 2:15 PM

Posted By PaulJ6 on 05/29/2020 1:44 PM
TonyL6, to add, in the court filing, you would just cite the specific provisions of the bylaws or other governing documents and would not need to cite to a statute in order to have a court throw them out. But if there is a state statute on point (perhaps, but any state statute likely just says that the terms of directors are described in the bylaws) then that's icing on the cake. A state statute is helpful, but not necessary, to throw them out.

That's what I have believed all along, but the lawyer says, no the directors whose term has expired can continue to serve until an election. Our by-laws state an election must be held within the first 90 days of the year. Here is what Florida says: FL Statute 720.306(9)(a) - Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association.

I don't understand how the lawyer is saying these guys can remain in office. In fact, two lawyers have said it - the HOA attorney and an attorney for which I paid.

By any chance are these lawyers saying this because they believe the COVID-19 situation can be used for justification? I'm not saying this is right but I'm curious if this is what's behind their answer?

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By JohnT38 on 05/29/2020 2:26 PM

Posted By TonyL6 on 05/29/2020 2:15 PM

Posted By PaulJ6 on 05/29/2020 1:44 PM
TonyL6, to add, in the court filing, you would just cite the specific provisions of the bylaws or other governing documents and would not need to cite to a statute in order to have a court throw them out. But if there is a state statute on point (perhaps, but any state statute likely just says that the terms of directors are described in the bylaws) then that's icing on the cake. A state statute is helpful, but not necessary, to throw them out.

That's what I have believed all along, but the lawyer says, no the directors whose term has expired can continue to serve until an election. Our by-laws state an election must be held within the first 90 days of the year. Here is what Florida says: FL Statute 720.306(9)(a) - Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association.

I don't understand how the lawyer is saying these guys can remain in office. In fact, two lawyers have said it - the HOA attorney and an attorney for which I paid.

By any chance are these lawyers saying this because they believe the COVID-19 situation can be used for justification? I'm not saying this is right but I'm curious if this is what's behind their answer?

Absolutely. COVID-19 is the excuse used by the HOA attorney and I believe the attorney for whom I paid is going along with it. This pandemic is truly horrific, but is that any excuse to ignore laws? If so, I'm going out and robbing a 7 Eleven.

PaulJ6
Posts: 990

Posted:

I would look at the provisions in the governing documents that describe how a special meeting (of owners) can be called, and I would do that: prepare your own materials such as proxies. Have the meeting though Zoom if that’s permitted.

Karen?

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TonyL6 on 05/29/2020 1:00 PM
So my question is, are they truly board members or in fact not because their term expired? This is Florida and it is an HOA involved. If you have an opinion one way or the other, it would be helpful if you can cite the statute (assume this is covered under Florida State Statute 720). I myself could find nothing about the expired board members legal status one way or the other.

I suspect that the way your governing documents read, a director's "term" does not expire until the annual election is held. Your governing documents may very well say that directors shall serve for a two-year term, but this likely rests on annual elections being held as required by the Bylaws.

What I advise you do is exercise your statutory rights under FS 720.311. Notably, from 720.311: "Neither election disputes nor recall disputes are eligible for presuit mediation; these disputes shall be arbitrated by the department." The Department is the "Florida Department of Business and Professional Regulation." Google and you will find contact information. Here is info I turned up quickly that may help you on your way:
http://myfloridalicense.custhelp.com/app/answers/detail/a_id/427/~/where-do-i-file-a-condominium-or-cooperative-arbitration-petition%2C-answer-or

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By AugustinD on 05/29/2020 2:54 PM

Posted By TonyL6 on 05/29/2020 1:00 PM
So my question is, are they truly board members or in fact not because their term expired? This is Florida and it is an HOA involved. If you have an opinion one way or the other, it would be helpful if you can cite the statute (assume this is covered under Florida State Statute 720). I myself could find nothing about the expired board members legal status one way or the other.

I suspect that the way your governing documents read, a director's "term" does not expire until the annual election is held. Your governing documents may very well say that directors shall serve for a two-year term, but this likely rests on annual elections being held as required by the Bylaws.

What I advise you do is exercise your statutory rights under FS 720.311. Notably, from 720.311: "Neither election disputes nor recall disputes are eligible for presuit mediation; these disputes shall be arbitrated by the department." The Department is the "Florida Department of Business and Professional Regulation." Google and you will find contact information. Here is info I turned up quickly that may help you on your way:
http://myfloridalicense.custhelp.com/app/answers/detail/a_id/427/~/where-do-i-file-a-condominium-or-cooperative-arbitration-petition%2C-answer-or

Here is exactly what our by-laws say (below). Good point about 720.311. We'll look into that.

Term of Office. Directors shall serve staggered two (2) year terms of office. At the 2013 annual election of directors, there are two (2) vacancies due to the expiration of terms for two (2) directors that were elected to serve three (3) year terms. At such election, the candidates elected to fill the two (2) vacant seats at such election shall be elected for terms of two (2) years. At all subsequent elections, the candidates elected shall be elected to terms of two (2) years to ensure staggered elections. Nothing herein shall be deemed to shorten the length of the term of any duly elected director.

TonyL6 (Florida)
Posts: 40

Posted:

I may have answered my own question. While Florida Statute 720 is the law governing HOA's, Florida Statute 617 governs not for profit corporation, which our HOA is. Statute 617.086 says, "Each director shall hold office for the term to which he or she is elected or appointed and until his or her successor has been elected or appointed and qualified or until his or her earlier resignation, removal from office, or death."

The key words are "...and until his or her successor has been elected"

Hardly seems right, but I guess that is it.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TonyL6 on 05/29/2020 3:00 PM
Here is exactly what our by-laws say (below). ...
Term of Office. Directors shall serve staggered two (2) year terms of office. At the 2013 annual election of directors, there are two (2) vacancies due to the expiration of terms for two (2) directors that were elected to serve three (3) year terms. At such election, the candidates elected to fill the two (2) vacant seats at such election shall be elected for terms of two (2) years. At all subsequent elections, the candidates elected shall be elected to terms of two (2) years to ensure staggered elections. Nothing herein shall be deemed to shorten the length of the term of any duly elected director.

Thank you. Folks quoting the exact relevant wording of their governing documents helps a lot.

A few of the reasons I agree with the two attorneys you mentioned is that, if three of the board members had to step down based on your reasoning, then violations of other parts of the governing documents might occur. E.g. quorum requirements and the likely requirement to have five directors might be violated. I guess one might argue that the three should step down, and the remaining two directors then get to appoint someone. But I am not convinced that, if push came to shove, a judge would see it your way.

Here's a link for HOA (subject to Chapter 720) members who want to file for arbitration with the Florida DBPR: http://myfloridalicense.custhelp.com/app/answers/detail/a_id/2113/~/where-do-i-find-forms-for-homeowners-association-%28hoa%29-recall-and-election

See also http://www.myfloridalicense.com/dbpr/lsc/documents/HOAAdministrativeCodes61b-80and81.pdf

One of the reasons I am interested in this is because I believe this is the third or fourth report I have seen of boards refusing to hold elections on account of COVID-19. These directors refusing to hold elections are saying that COVID-19 requires them to violate the Bylaws. But using this reasoning, they could also violate the Bylaws and get the election done via, say, an online voting company; absentee ballot; and similar. What these directors are doing is picking and choosing which Bylaws to violate on account of COVID-19. Common sense says they may as well err on the side of violations that get the elections done. (Consider using my paragraph herein in your arbitration complaint.)

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TonyL6 on 05/29/2020 3:12 PM
I may have answered my own question. While Florida Statute 720 is the law governing HOA's, Florida Statute 617 governs not for profit corporation, which our HOA is. Statute 617.086 says, "Each director shall hold office for the term to which he or she is elected or appointed and until his or her successor has been elected or appointed and qualified or until his or her earlier resignation, removal from office, or death."

The key words are "...and until his or her successor has been elected"

Hardly seems right, but I guess that is it.

Good job.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By TonyL6 on 05/29/2020 2:15 PM

Posted By PaulJ6 on 05/29/2020 1:44 PM
TonyL6, to add, in the court filing, you would just cite the specific provisions of the bylaws or other governing documents and would not need to cite to a statute in order to have a court throw them out. But if there is a state statute on point (perhaps, but any state statute likely just says that the terms of directors are described in the bylaws) then that's icing on the cake. A state statute is helpful, but not necessary, to throw them out.

That's what I have believed all along, but the lawyer says, no the directors whose term has expired can continue to serve until an election. Our by-laws state an election must be held within the first 90 days of the year. Here is what Florida says: FL Statute 720.306(9)(a) - Elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association.

I don't understand how the lawyer is saying these guys can remain in office. In fact, two lawyers have said it - the HOA attorney and an attorney for which I paid.

This is a recurring issue in HOAs but the guidance that I've gotten on the point, from several condo/coop lawyers in Manhattan, is that if a HOA doesn't hold an election in a timely manner, even if the governing documents don't specify what happens if an election isn't held in a timely manner, that failure can be challenged.

Take matters into your own hands and call a special meeting and vote them out.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By PaulJ6 on 05/29/2020 3:25 PM
Take matters into your own hands and call a special meeting and vote them out.

I agree this is an option to consider. Dotting i's and crossing t's is going to be difficult either way. At least with the Special Meeting approach, the members who want the jerks off the board do not have to roll the dice on the Florida DPBR's arbitrators being competent or saying that anything goes with COVID-19.

TonyL6 (Florida)
Posts: 40

Posted:

Thank you so much for your input. It's not hard to get the votes for a special meeting. I will see if my group wants to proceed that way. Certainly a lot less expensive than engaging lawyers.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By TonyL6 on 05/29/2020 3:51 PM
Thank you so much for your input. It's not hard to get the votes for a special meeting. I will see if my group wants to proceed that way. Certainly a lot less expensive than engaging lawyers.

Glad to help. I've sued a HOA whose board members were illegally in office (as the bylaws had been violated in connection with their elections) and it's tricky to sue on that basis. I'd recommend a special meeting instead of a lawsuit- much easier and cheaper and you have more control over the outcome.

GeorgeS21 (Florida)
Posts: 3,808

Posted:

I think, given the C19 circumstances, some election hubbub like this is going to occur.

I believe your board likely can avoid the election for some period of time, and that they might even be able to challenge the results of a special meeting, citing their C19 concerns.

However, given the ease of online meetings now, this would likely be considered in any legal discussion.

KerryL1 (California)
Posts: 14,550

Posted:

Good, helpful research, Augustin.

GenoS (Florida)
Posts: 4,276

Posted:

The "Emergency Powers" available to an HOA Board in Florida are set to expire Monday, June 1. One of those emergency powers is to cancel or re-schedule meetings (board or members). You could start on Monday by asking when the annual meeting has been rescheduled for.

You may very well be headed towards a recall of some/all of the current Directors. In that case, how many owners are there and how likely is it that a majority would vote to recall one or more Directors? It would take some work, but if a significant majority of owners want to recall a Director (or more than one Director) then neither the Board, the management company, or the association attorney can thwart the will of the homeowners forever.

TonyL6 (Florida)
Posts: 40

Posted:

The numbers for a recall is a majority of all voting members. We would need 94 affirmative votes. However, since the three current board members up for election already have expired terms, I'm not sure how that would work. The special meeting sounds like the best first step.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By TonyL6 on 05/30/2020 8:54 AM
The numbers for a recall is a majority of all voting members. We would need 94 affirmative votes. However, since the three current board members up for election already have expired terms, I'm not sure how that would work. The special meeting sounds like the best first step.

I would just include (1) removal of the relevant persons, by name, and (2) election of new people on the meeting materials (such as proxies): either whoever the proxy holder wants or a named individual.

PaulJ6
Posts: 990

Posted:

To add, I think that a demand letter to the people whose terms have expired, with the entire HOA copied, pointing out the relevant provisions in the bylaws, etc. that show that they have surpassed their terms, and demanding that they resign immediately, and threatening a lawsuit to (1) remove them from office and (2) overturn their actions while unlawfully in office, would be fun. That would cost at least about $500 in legal fees, though.

PaulJ6
Posts: 990

Posted:

To add, I think that a demand letter to the people whose terms have expired, with the entire HOA copied, pointing out the relevant provisions in the bylaws, etc. that show that they have surpassed their terms, and demanding that they resign immediately, and threatening a lawsuit to (1) remove them from office and (2) overturn their actions while unlawfully in office, would be fun. That would cost at least about $500 in legal fees, though.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By PaulJ6 on 05/30/2020 9:22 AM
To add, I think that a demand letter to the people whose terms have expired, with the entire HOA copied, pointing out the relevant provisions in the bylaws, etc. that show that they have surpassed their terms, and demanding that they resign immediately, and threatening a lawsuit to (1) remove them from office and (2) overturn their actions while unlawfully in office, would be fun.

Such a demand letter becomes a part of the record of evidence submitted to a court. Whence the judge will wonder why the plaintiff did not spare the court the taxpayers' time and money and use the method the Florida legislature went to great trouble to lay out: Arbitration with the Florida Department of Business and Professional Regulation and/or a recall vote.

Florida Statute 720.303 (10) "Recall of Directors" takes a HOA member by the hand to achieve a recall. Per the statute, a meeting is not even necessary. See http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html

Per 720.303 (10) (c) 2., after a recall vote, the OP's board is supposed to certify the vote whence the directors voted out are recalled effective immediately. If the OP's board refuses to do this, then the board is required to seek arbitration with DBPR.

Going forward, the OP should document thoroughly everything the board does, to ensure as strong a case as possible with DBPR's arbitrator(s).

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By PaulJ6 on 05/30/2020 9:22 AM
To add, I think that a demand letter to the people whose terms have expired, with the entire HOA copied, pointing out the relevant provisions in the bylaws, etc. that show that they have surpassed their terms, and demanding that they resign immediately, and threatening a lawsuit to (1) remove them from office and (2) overturn their actions while unlawfully in office, would be fun. That would cost at least about $500 in legal fees, though.

That option is on the table (lawyer letter cost - $395). The group I'm with whom I am working up to this point has not wanted to exert their rights legally. They are afraid of the association lawyer who is propping up the three board members.

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Didn’t read the thread, NO it is not illegal for them to continue to serve the documents and law always state their terms expire at the next annual meeting. Our annual meeting used to be in December but due to lack of quorum and voting count, it is now in April.

NO need to convince the HOA to call a meeting. Send out the notice of member meeting yourself and make sure you follow the distancing guidelines at the meeting. Or have a lawyer send a 7 day notice to them or else tell them you’ll call a meeting yourself. Would rather spend the money in mailing then a lawyer who tells you the same advice you already know.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Let us ignore all health guidelines and have an annual meeting with many folks crowded into a small space. Health be damned.......IDJITS.......

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By JohnC46 on 05/30/2020 10:35 AM
Let us ignore all health guidelines and have an annual meeting with many folks crowded into a small space. Health be damned.......IDJITS.......

I don't think you get it, John. There is no reason to get into a room with 100 people. Florida state law provides for electronic meetings and mail in ballots.

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By SheilaJ1 on 05/30/2020 10:10 AM
Didn’t read the thread..

Too bad. You would have benefitted from reading the thread. Everything you noted was already mentioned.

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Okay, are you planning to run for the board?

You mention special meeting can get enough votes together to hold one?

Anyone else eager to hold the meeting, I mean have they told you they want a meeting ?

Very good topic, let us know what you decide

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By SheilaJ1 on 05/30/2020 11:20 AM
Okay, are you planning to run for the board?

You mention special meeting can get enough votes together to hold one?

Anyone else eager to hold the meeting, I mean have they told you they want a meeting ?

Very good topic, let us know what you decide

I am not running for the board, but I am supporting opposing candidates.

Only 10% of membership is required to call a special meeting. That is 19 votes for us. Not a problem at all.

Yes, there are others who want this to happen - not just an election but other issues as well. We are going to explore the mechanics of it all within the next few days.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TonyL6 on 05/30/2020 11:42 AM
Only 10% of membership is required to call a special meeting.

Florida Statute 720.303 (10) (b) 1. "Board directors may be recalled by an agreement in writing or by written ballot without a membership meeting. The agreement in writing or the written ballots, or a copy thereof, shall be served on the association by certified mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure."

PaulJ6
Posts: 990

Posted:

Quote:

Posted By TonyL6 on 05/30/2020 11:42 AM

Posted By SheilaJ1 on 05/30/2020 11:20 AM
Okay, are you planning to run for the board?

You mention special meeting can get enough votes together to hold one?

Anyone else eager to hold the meeting, I mean have they told you they want a meeting ?

Very good topic, let us know what you decide

I am not running for the board, but I am supporting opposing candidates.

Only 10% of membership is required to call a special meeting. That is 19 votes for us. Not a problem at all.

Yes, there are others who want this to happen - not just an election but other issues as well. We are going to explore the mechanics of it all within the next few days.

Yes but please also check (1) quorum requirements at a special meeting (how many people need to be there or be represented by proxies for any actions at the meeting to be valid) and (2) what number of owners needs to vote against the bad directors to get rid of them and outvote their supporters? Don't proceed with actually calling the meeting until you have enough supporters for all of those requirements.

KerryL1 (California)
Posts: 14,550

Posted:

I'm not sure, but I think Sheila's suggesting a different possibility than a recall. She's suggesting simply calling a Meeting of the Members. Purpose. To elect a board of directors. Your Bylaws, Tony, should tell you what's required to call such a meeting, for example, who may call the meeting.

As Paul notes, you need to meet quorum requirements (IF there is one in Bylaws) and the % required for owners to fill the three seats. Simple majority of quorum? Or?

There also are undoubtedly notice requirements.

Onward, Tony!

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Quote:

Posted By TonyL6 on 05/30/2020 11:42 AM

Posted By SheilaJ1 on 05/30/2020 11:20 AM
Okay, are you planning to run for the board?

You mention special meeting can get enough votes together to hold one?

Anyone else eager to hold the meeting, I mean have they told you they want a meeting ?

Very good topic, let us know what you decide

I am not running for the board, but I am supporting opposing candidates.

Only 10% of membership is required to call a special meeting. That is 19 votes for us. Not a problem at all.

Yes, there are others who want this to happen - not just an election but other issues as well. We are going to explore the mechanics of it all within the next few days.

Very good Tony, if others are wanting to volunteer, that helps your end goal.

Gather a few interested people, no need to get signatures or anything, if the you told the board, people are wanting to run, then you can call the meeting by yourself as long as you have everyone's address. And if they give you flack about wrong addresses, and still show up, they waive any issues regarding notice.

Been through this.

Onward.

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Quote:

Posted By PaulJ6 on 05/30/2020 12:02 PM

Posted By TonyL6 on 05/30/2020 11:42 AM

Posted By SheilaJ1 on 05/30/2020 11:20 AM
Okay, are you planning to run for the board?

You mention special meeting can get enough votes together to hold one?

Anyone else eager to hold the meeting, I mean have they told you they want a meeting ?

Very good topic, let us know what you decide

I am not running for the board, but I am supporting opposing candidates.

Only 10% of membership is required to call a special meeting. That is 19 votes for us. Not a problem at all.

Yes, there are others who want this to happen - not just an election but other issues as well. We are going to explore the mechanics of it all within the next few days.

Yes but please also check (1) quorum requirements at a special meeting (how many people need to be there or be represented by proxies for any actions at the meeting to be valid) and (2) what number of owners needs to vote against the bad directors to get rid of them and outvote their supporters? Don't proceed with actually calling the meeting until you have enough supporters for all of those requirements.

He essentially only needs his own interest to have an election meeting of the members, more is better. Doesn't need a guaranteed quorum either, all he needs is a 30 day notice to be sent to all homeowners. And like I said, if the board members complain that its not a proper notice and still show up, then they waive any notice requirements.

Also, make sure you have a place to meet, right now businesses are not open, essentially you could hold it anywhere in your community, someone's house for instance. The playground, since you know those are closed for kids.

PaulJ6
Posts: 990

Posted:

Quote:

Posted By SheilaJ1 on 05/30/2020 12:49 PM

Posted By PaulJ6 on 05/30/2020 12:02 PM

Posted By TonyL6 on 05/30/2020 11:42 AM

Posted By SheilaJ1 on 05/30/2020 11:20 AM
Okay, are you planning to run for the board?

You mention special meeting can get enough votes together to hold one?

Anyone else eager to hold the meeting, I mean have they told you they want a meeting ?

Very good topic, let us know what you decide

I am not running for the board, but I am supporting opposing candidates.

Only 10% of membership is required to call a special meeting. That is 19 votes for us. Not a problem at all.

Yes, there are others who want this to happen - not just an election but other issues as well. We are going to explore the mechanics of it all within the next few days.

Yes but please also check (1) quorum requirements at a special meeting (how many people need to be there or be represented by proxies for any actions at the meeting to be valid) and (2) what number of owners needs to vote against the bad directors to get rid of them and outvote their supporters? Don't proceed with actually calling the meeting until you have enough supporters for all of those requirements.

He essentially only needs his own interest to have an election meeting of the members, more is better. Doesn't need a guaranteed quorum either, all he needs is a 30 day notice to be sent to all homeowners. And like I said, if the board members complain that its not a proper notice and still show up, then they waive any notice requirements.

Also, make sure you have a place to meet, right now businesses are not open, essentially you could hold it anywhere in your community, someone's house for instance. The playground, since you know those are closed for kids.

Even if there is a way of removing the bad board members without meeting quorum and voting requirements at a special meeting, you don't want the bad directors turning around and turning the tables and calling their own special meeting and removing the new directors. So it's best to have enough support to prevent that.

So get proxies that are valid for a LONG time (state law may limit how long they can be valid for), state on the proxies that they can be withdrawn only by following nit-picky procedures that are tough to follow and be sure that you get enough proxies to make it impossible for others to hold a counter-revolution. Basically, ensure that you have enough community support to get re-elected at the next meeting, too.

TonyL6 (Florida)
Posts: 40

Posted:

Quorum requirements for a recall is a simple majority. We would need 89 homeowners onboard. That may be a little difficult to do and unnecessary since the the three directors in question have expired terms anyway. If they were to win new terms, we probably could get a recall through. Forcing the election through a call for a special meeting still looks like the best bet.

I'm familiar with Florida Statute 720.303. In fact, I just about got 720 memorized and a full copy is on my desktop.

Proxies are only good only for the meeting for which they are signed. You can adjourn and reconvene the meeting and still use the proxy, but the proxy will expire 90 days from the original meeting date. Florida Statute 720.306(8)(a).

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Agree with Paul, good to have some support, if people are willing to get a petition, usually need 10% thats even better. however, signatures are very hard to collect, neighbors may say something verbally but then signing something is totally different.

Also, bad directors can call elections the way they want, but in this case its the opposite. The bad directors are already in place, no need for them to call a meeting.

Steps
1) get support, get signatures
optional: get a lawyer to do it
2) send 30 day notice, with time, place location, and an empty proxy form
3) mail it to each owner or leave it on their door (free), take a picture of each notice at door, make sure you put in in a ziplock and tape it or leave it so it won't fly away
4) let the bad board fuss and force their hand, they will send a notice saying your notice is invalid
then you will have the excuse they are using not to hold a meeting
5) if they still don't want to hold it or using the COVID19 excuse (states are open for business, they can't use this excuse)
6) go to court

other posters can amend the steps how they see fit

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By TonyL6 on 05/30/2020 1:08 PM
If they were to win new terms, we probably could get a recall through.

Correction: If they were to win new terms, we probably could NOT get a recall through.
Wish I could edit my post.

PaulJ6
Posts: 990

Posted:

SheilaJ1 makes great points.

I would use DocuSign or the like if you can, to make getting proxies easy, if DocuSigned proxies are valid in Florida.

SheilaJ1 (South Carolina)
Posts: 291

Posted:

Quote:

Posted By TonyL6 on 05/30/2020 1:10 PM

Posted By TonyL6 on 05/30/2020 1:08 PM
If they were to win new terms, we probably could get a recall through.

Correction: If they were to win new terms, we probably could NOT get a recall through.
Wish I could edit my post.

Hey if you think you can do a recall and a new election all in one go for it. Get two petitions, one for recall and one for the annual election, since you'll be going door to door anyway.

But they'll fight a recall, too much trouble in my opinion.

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By TonyL6 on 05/30/2020 1:08 PM
Quorum requirements for a recall is a simple majority. ...
I'm familiar with Florida Statute 720.303. In fact, I just about got 720 memorized and a full copy is on my desktop.

Great! Do post the section of 720 that says that the quorum requirement for a recall is "a simple majority."

Hint: You do not need a quorum.

KerryL1 (California)
Posts: 14,550

Posted:

I, too, was wondering if a quorum is required in FL.

(It's not in CA but happens to be in our bylaws....for now)

TonyL6 (Florida)
Posts: 40

Posted:

Quote:

Posted By AugustinD on 05/30/2020 1:35 PM

Posted By TonyL6 on 05/30/2020 1:08 PM
Quorum requirements for a recall is a simple majority. ...
I'm familiar with Florida Statute 720.303. In fact, I just about got 720 memorized and a full copy is on my desktop.

Great! Do post the section of 720 that says that the quorum requirement for a recall is "a simple majority."

Hint: You do not need a quorum.

Florida State Statute 720.303(10)(a)1. ...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.

I added the word "simple." And strictly speaking, you don't even need a meeting (Florida State Statute 720.303(10)(a)1.). In this context, I used quorum in place of votes. Probably not correct and certainly confusing. Once the number of recall votes is received, the board must convene within 5 days to certify the votes, and that's when the stuff really hits the fan.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By TonyL6 on 05/30/2020 11:42 AM
I am not running for the board, but I am supporting opposing candidates.

Only 10% of membership is required to call a special meeting. That is 19 votes for us. Not a problem at all.

Yes, there are others who want this to happen - not just an election but other issues as well. We are going to explore the mechanics of it all within the next few days.

You can get people to sign a recall petition and you do NOT need a meeting for that to happen. You should endeavor to make sure the signatures on the petition are accurate and verifiable. When the petition is delivered to the board, the board must schedule a board meeting to consider it. The first thing they will do is examine the petition signatures in order to disqualify some of the signatures. If the association has "voting certificates" they will compare signatures on the petition with those on the voting certificates. Then they'll check HOA records to see if any signatures on the petition are from people who are not the record owners of their home.

Here is the DBPR's "Form for Written Recall Agreement". Here is a DBPR publication called, "Recall Procedures for Condominiums and Cooperatives". Note that it doesn't mention FS 720 Homeowners Associations by name, but the procedures (even those from 2005) are very similar. Pay particular attention to what it says on "Page 3 of 30".

"Recall by a unit owner vote at a meeting is procedurally challenging and rarely succeeds, and is not recommended."
"Recalls by written ballot are successful much more often because the procedures are easier."

That remains true. I wouldn't bother trying to set up a Special Meeting of the Members for the purpose of holding a recall vote. The Written Recall Agreement is easier by far. Leave your other issues for later. If/When you get replacement directors seated, then they can schedule whatever else is needed to address those issues. Focus like a laser on the recall. The DBPR doesn't care why there's a recall effort. They're only interested that the proper procedures are followed.

Also consider having a prepared list of Replacement Directors willing to serve. That is required if you're recalling and replacing at least a majority of the board. If you're recalling LESS than a majority, then you don't need to name replacements on the Written Recall Agreement/Ballot.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By GenoS on 05/30/2020 3:53 PM

Posted By TonyL6 on 05/30/2020 11:42 AM
I am not running for the board, but I am supporting opposing candidates.

Only 10% of membership is required to call a special meeting. That is 19 votes for us. Not a problem at all.

Yes, there are others who want this to happen - not just an election but other issues as well. We are going to explore the mechanics of it all within the next few days.

You can get people to sign a recall petition and you do NOT need a meeting for that to happen. You should endeavor to make sure the signatures on the petition are accurate and verifiable. When the petition is delivered to the board, the board must schedule a board meeting to consider it. The first thing they will do is examine the petition signatures in order to disqualify some of the signatures. If the association has "voting certificates" they will compare signatures on the petition with those on the voting certificates. Then they'll check HOA records to see if any signatures on the petition are from people who are not the record owners of their home.

Here is the DBPR's "Form for Written Recall Agreement". Here is a DBPR publication called, "Recall Procedures for Condominiums and Cooperatives". Note that it doesn't mention FS 720 Homeowners Associations by name, but the procedures (even those from 2005) are very similar. Pay particular attention to what it says on "Page 3 of 30".

Pay attention to Geno versus go off half cocked.

"Recall by a unit owner vote at a meeting is procedurally challenging and rarely succeeds, and is not recommended."
"Recalls by written ballot are successful much more often because the procedures are easier."

That remains true. I wouldn't bother trying to set up a Special Meeting of the Members for the purpose of holding a recall vote. The Written Recall Agreement is easier by far. Leave your other issues for later. If/When you get replacement directors seated, then they can schedule whatever else is needed to address those issues. Focus like a laser on the recall. The DBPR doesn't care why there's a recall effort. They're only interested that the proper procedures are followed.

Also consider having a prepared list of Replacement Directors willing to serve. That is required if you're recalling and replacing at least a majority of the board. If you're recalling LESS than a majority, then you don't need to name replacements on the Written Recall Agreement/Ballot.