New Board 1st Mtg cancel by incumbent Board President

In Florida...Our current Board has been operating with 3 members [require 5 members]

Our Association's document requires candidates interested in serving on the Association's Board must file their intention/ interests in writing with the Association by July 31st or are nominated at a meeting of the Board held not less than 14 days before the Association Members' Annual Meeting which is duly noticed for that purpose...neither took place.

Our Association Members' Annual Meeting [MAM] were held Monday 10.23.23 and the new Board's 1st Board Meeting are require to be held immediately after following the adjournment of Homeowners' Annual Meeting.
The incumbent president did not attend the Association Members' Annual Meeting and canceled the new Board's 1st Board Meeting without cause, before the Association Members' Annual Meeting took place...is it legal? Does the incumbent president/ Board has the authority to cancel the new Board's 1st. Board Meeting, that the 3 incumbent Board members may not be a member of and did not file a written declaration of their interest to serve on the new Board?

At the Association Members' Annual Meeting I announced that I want to serve on the new Board, starting after the Association Members' Annual Meeting, and were informed that I can not be seated on the New Board at this time and will have to wait until the next Board meeting [which were require to take place immediately after the Members' Annual Meeting, but were canceled by the incumbent President/ Board prior to the Annual Meeting]. Technically the term of office for the incumbent Board members end/ expires after the adjournment of the Members' Annual Meeting.

Anyone had encountered the above scenario and are there illegal shenanigan, by the incumbent Board, to stay in power/ control?

Usual disclaimer: I am not a lawyer and don't know all of Florida's legal requirements.

My understanding is that if there had been a valid election, the new terms for all board members began after that meeting adjourned. It sounds like this happened. A board meeting immediately afterwards isn't necessary to rubber-stamp the legality of the election. The purpose of that meeting is mainly to elect officers (ie. the various board members' functions in the newly formed board) and to attend to any necessary work. Failure to hold that meeting could be an issue if, for example, somebody needed to sign a contract immediately - that's usually the president's job, if you don't know who that is, then you have a problem.

As for whether the president can decide not to hold the meeting, you should check your community's bylaws and state law to see what kind of authority the president has. It may be his call. On the other hand, many bylaws give the VP or the Secretary the ability to act if the President isn't available or refuses to act. This may not apply in this case, though, since the President *did* act. The other board members may not have the authority to override his decision, or at least not quickly.

There can be legitimate reasons for the President not to attend the annual meeting (illness or family emergency). Attendance isn't a requirement. And not attending the meeting and cancelling the board meeting immediately afterwards won't change the outcome of the election. So even if he was up to no good, I'm not sure he accomplished his goals - this just delayed the inevitable.

So my reading is that the previous incumbent board is no longer "the board". A valid election happened. You just don't know who the various officers are at this point. This may or may not be an immediate problem. I think you need more information to know what's actually going on.

Does your state law have a minimum notification period, or other laws that might have an impact on the timing of cancelations.

Something happened where an association canceled its annual meeting an hour before it started. No one legally challenged that cancelation, but since Texas, where it took place, has a minimum notice for annual meetings, someone opined that they had no authority to cancel within an hour without a force majeure issue which was not the case because a quorum of the board still showed up to eat - just no meeting held. The argument was that if there is a minimum time frame for the announcement of a meeting then the flip side is the same period extends for cancelations without emergency cause. If you want to legally challenge it, check with an attorney.

Thank you for your input...The community were new with 19 homes, gated and the developer handed over to the 2nd oldest [residency not age] resident [an office clerk] and she picks another resident [a retire Dental Hygienist] to be her VP. Together they hired a Property Management Co to manage over our new community with a small common area [.125a detention pond + .125a grass area], 2 gates [both non-functional]. 8 years ago, when I first move in, our HOA monthly fees were 25$/mo [475$ monthly collection], the PMC monthly fee were 450$/mo leaving the HOA 25$/mo to pay for lawn care, utility [electrical for irrigation and gates, even though no functional]. The 2 unofficial Board members had also hired an attorney [a General Law] to file our legal document. I call for an election to be held and became a Board Director [the Association's 1st President] along with 4 other Directors.

All of us had never lived in an HOA development, so it was a very new experience. I have over 3 decades of experience in the field of architectural design and project management; our new Board members include a IT PM for a big box retailer (VP), a fire suppression salesman (Secretary), a retired finance clerk (Treasurer) and an hospital HR (Director)...We have 5 Board of Directors, not 2 [check].

We held a Board mtg with members attendance and voted to terminate the PMC and raised the monthly fees to 50$/mo [950$/mo collection] to give the Board resources to work with for caring for the common area and bringing the gates into service. A small step forward.

The HOA's bylaws documents had to be updated to change the verbiage from Developer control to the Association's control, defines the CCR. The Association had no money and had to stop the bleeding, gather our wits and develop a game plan moving forward. Because I deal with Building Codes and Regulations during the course of my works, I proposed that the Board invest the time needed to look over our Bylaws and CCR and draft up any changes needed and get the Association's members involvement, input and then finally approval prior to handing it over to an attorney specializes in HOA laws. All Board members, as a team, are in agreement on the direction of the Board's strategies. We held a ballot vote [to be turn in to the Board prior to the starting of the Members' meeting] on the proposed changes. At the meeting all of the ballots were opened and accounted for except the Secretary's. When asked he stated he doesn't want to do the ballot but rather want to vote in person and doesn't see why we have to adheres to rules, it's just a small community. This individual is the first home owner in the community and felt that he has seniority and has no problem dictating to other home owners what he want them to do with their home and how to live in the community...a Dictator. I had worked very hard with all board members, for several months, to get us to the point when we can finalized the draft and voted on the documents [prior to having an attorney for legal review and edits]; at no time during the course of the work did the secretary voice his intent or opposes the voting method [most of our Association's members works and with young family and attendance at the meeting are often low, but they can participated using proxies and ballot vote]. I felt I was ambushed and undermined and decided to resigned from the Board.

The VP became the new President. The 5th Director became the VP, Secretary, Treasurer remains the same and a new board member were brought on to meet the require 5 members Board.
Since then, most of the original Board members has resigned or moved away, the Secretary had jockeyed his way into being the President, a new home owner became the Treasurer/ Secretary [a finance guy with Raymond James] and a Board member [a retire veterinarian]...a 3 members Board [President, Secretary/ Treasurer & Board member], for the last 2.5 years. IMHO, no one wanted to join the Board to be the President's voiceless lackeys.

The Board held no elections and the Association only had our Members' Association Annual meeting, every year [as required] in October. Last year [2021] Members' Annual Meeting did not occurred, did not meet quorum. The 3 Board members did have their Board Meeting right after adjournment of the Association Members' Meeting but without members participation. In the last 7 years, the Board held no public Board meetings, as require by FS, but only amongst themselves and without members approval on service contracts over 5% of the Association's Annual Budget [now 10%].

The annual Association Members' meeting, held Monday, were ran by the Treasurer/ Secretary and when I asked "If their terms of service are over after the adjournment of the Annual meeting and no Board members had submitted, to the Association, their written intention to hold office, does the Association officially and technically have a functional Board?" I was told the Association's attorney told them that they can stay in office as long as there's not enough interests in fulfilling the Board vacancies.

I am a rule and order kind of individual, demands transparency from the Board, Fixing things because it need fixing, being good stewardship of the Association's money and not be wasteful or careless, encourages participation from all members [if or when all possible], solutions and not mandates, respect and not being condescending, protecting the Association's interest from liabilities...The incumbent President operates with the mindset that the Board Members are to serves at his pleasure and his ideas and rules over ride the Association's CCR.

I want to take the helm and get many of the works that had been ignored by the Board for the last 8 years since the Developer turned the HOA over to the homeowners...likes Change ownership of the Common Area from the developer to the Association.

Sorry for the long winded repsonse.

My understanding is that if there had been a valid election, the new terms for all board members began after that meeting adjourned...The Board have not held an election for 7 years. It currently have 3 members and are soliciting for the 2 vacancies to be fill [it need to have 5 members]. At the members annual meeting 2 of 3 Board members were present and I stated that I wanted to serve on the new Board and was told that I cannot be seated until the next board meeting.

It sounds like this happened...No

A board meeting immediately afterwards isn't necessary to rubber-stamp the legality of the election...it is a requirement to be held immediately after the Members' Annual Meeting, even just for formality and documentation. If there wasn't sufficient number for quorum, then the meeting can be adjourned. The 2 attending Board members, plus myself [I am not sure if I needed to be approved by the Board or the Association, to be a Board member; secondly none of the existing Board members had filed a written declaration that they wanted to serve on the Board, as required by the Association legal documents...it's kinda grey and up for more legal interpretation] would meet quorum [3/5] and the new Board [if applicable] can conduct the new Board's 1st Board Meeting, as required, and seat offices. IMHO, I mentioned to a former Board Members of my interest to be on the Board and it was mentioned to the incumbent president [who want to remain in power] canceled the new Board's 1st Board Meeting, without cause, until the next Board Meeting which is TBD.

The purpose of that meeting is mainly to elect officers (ie. the various board members' functions in the newly formed board) and to attend to any necessary work. Failure to hold that meeting could be an issue if, for example, somebody needed to sign a contract immediately - that's usually the president's job, if you don't know who that is, then you have a problem...(a) The incumbent Board had went into contract for new lawn service that exceeded 10% of the Association Annual Budget, without the approval of the Association. (b) Approved repaired works to correct non permitted gate replacement without being transparent to the Association on costs. (c) Prior to the Members' Annual Meeting the incumbent president sent out 2 emails chastising members of the community about community's violations that are not specifically defined in our legal documents, but only to his judgement. Pointing out specific homes and refers to them as being ignorant. He is in violation himself and believes that he's the law and will personally [not the Board] see to it that every violators either fixes the violations or it will be done for them and a lien be file against their properties. There is a problem.

As for whether the president can decide not to hold the meeting, you should check your community's bylaws and state law to see what kind of authority the president has...The Association's bylaws stated that the new Board SHALL have their 1st Board meetings immediately following the adjournment of the Members' Annual Meeting. If 2/3 (a majority?) members of the incumbent Board attend the meeting and I the newly declared Board Member that would make 3/5 [a quorum] and the 1st Board meeting to move forward [? legal interpretation needed]
It may be his call...[? legal interpretation needed]
On the other hand, many bylaws give the VP or the Secretary the ability to act if the President isn't available or refuses to act. This may not apply in this case, though, since the President *did* act. The other board members may not have the authority to override his decision, or at least not quickly.

There can be legitimate reasons for the President not to attend the annual meeting (illness or family emergency)...out of town.
Attendance isn't a requirement. And not attending the meeting and cancelling the board meeting immediately afterwards won't change the outcome of the election...The authority/legality of the incumbent Board regarding cancelling the new Board's 1st Board Meeting, as require, is in question.

So even if he was up to no good, I'm not sure he accomplished his goals - this just delayed the inevitable...not sure on that.

Thanks

So my reading is that the previous incumbent board is no longer "the board". A valid election happened. You just don't know who the various officers are at this point. This may or may not be an immediate problem. I think you need more information to know what's actually going on.

You still didn't answer my questions. Was the annual meeting held Monday a valid, legal meeting according to your bylaws and the FS 720? Did advance notices go out? Did you have a quorum according to your bylaws? If it wasn't a valid meeting, then you didn't get elected or appointed and any business your board tried to conduct at the meeting wasn't legal.

You said: The annual Association Members' meeting, held Monday, were ran by the Treasurer/ Secretary and when I asked "If their terms of service are over after the adjournment of the Annual meeting and no Board members had submitted, to the Association, their written intention to hold office, does the Association officially and technically have a functional Board?" I was told the Association's attorney told them that they can stay in office as long as there's not enough interests in fulfilling the Board vacancies.

The attorney was correct. Unless a valid election was held or there were more candidates than open seats and new people were elected, the old board stays in place until they are voted out or there is an official recall process.

It does sound like you have a mess with your board. You are self managed, so the only people that can call a legal meeting are the secretary or another member of the board - and you'd still have to have a quorum to conduct business. If you don't have board meetings, then the board is illegally making decisions without the input required of the community by having discussion of agenda items. They can't legally conduct business outside a meeting.

You might want to pay for a consultation with an HOA attorney to see what your best steps are. You can make a complaint DBPR about your HOA, but if they defend themselves and hire a lawyer you are all going to have to pay for it as part of your assessments. Without legal action, it seems like your board is going to do whatever they want.

Does your state law have a minimum notification period, or other laws that might have an impact on the timing of cancelations...I am not aware of such requirements. Need to research it.

Something happened where an association canceled its annual meeting an hour before it started. No one legally challenged that cancelation, but since Texas, where it took place, has a minimum notice for annual meetings, someone opined that they had no authority to cancel within an hour without a force majeure issue which was not the case because a quorum of the board still showed up to eat - just no meeting held. The argument was that if there is a minimum time frame for the announcement of a meeting then the flip side is the same period extends for cancelations without emergency cause. If you want to legally challenge it, check with an attorney...The annual meeting was schedule for 6pm and the new Board's 1st Board Meeting were cancelled at 11am. If it was just a normal Board meeting to conduct needed business, by the sitting Board during their term in office; I am totally okay with it. The canceling of the new Board's 1st Board Meeting, imho, is not within the incumbent Board's authority to call, but rather reserved for the new Board to conduct/ adjourn, as their first duty exercise.

You still didn't answer my questions.

Was the annual meeting held Monday a valid, legal meeting according to your bylaws and the FS 720? Did advance notices go out? Did you have a quorum according to your bylaws?...Yes to all your question.

If it wasn't a valid meeting, then you didn't get elected or appointed and any business your board tried to conduct at the meeting wasn't legal.

You said: The annual Association Members' meeting, held Monday, were ran by the Treasurer/ Secretary and when I asked "If their terms of service are over after the adjournment of the Annual meeting and no Board members had submitted, to the Association, their written intention to hold office, does the Association officially and technically have a functional Board?" I was told the Association's attorney told them that they can stay in office as long as there's not enough interests in fulfilling the Board vacancies.

The attorney was correct. Unless a valid election was held or there were more candidates than open seats and new people were elected, the old board stays in place until they are voted out or there is an official recall process...Noted.

It does sound like you have a mess with your board. You are self managed, so the only people that can call a legal meeting are the secretary or another member of the board - and you'd still have to have a quorum to conduct business. With 19 homes and a requirement of minimum 30% to have a quorum, we had 9 Association members attended, so the Members' Annual Meeting is valid.

If you don't have board meetings, then the board is illegally making decisions without the input required of the community by having discussion of agenda items. They can't legally conduct business outside a meeting...They know that, and reminded of that, but chooses to ignore the laws.

You might want to pay for a consultation with an HOA attorney to see what your best steps are. You can make a complaint DBPR about your HOA, but if they defend themselves and hire a lawyer you are all going to have to pay for it as part of your assessments. Without legal action, it seems like your board is going to do whatever they want...I am doing my due diligence and fact finding, then will talk to the Association members about the best thing for the Community.

Thank you.

I disagree that there is no board. The Florida nonprofit corporation statute says that a director serves, among other things, "until until his or her successor has been elected or appointed and qualified or until his or her earlier resignation, removal from office, or death. See
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0600-0699/0617/0617.html, section 617.0806...Okay, I can go with that.

If no one was elected to replace the incumbent directors, then they have the right to continue in office...I can understand that.

At the annual meeting (where you say quorum was met), did you stand and nominate yourself from the floor? Or did you just use the words "I want to serve on the board"? If you said only, "I want to serve on the board," then in my opinion, you just gave grounds to the incumbents to deny you a seat on the board...I did stated that I will serve on the new Board [2023-2024], starting after the adjournment of the Annual Meeting and were informed by the Treasurer/ Secretary that he can't seat me on the Board, until the next Board Meeting.

Is this HOA subject to FS 720? Or FS 718 (for condominiums)?...FS 720

Thank you.

A few observations:

-- In my experience the best HOA attorneys advise boards that keeping all board seats filled is advisable.

-- But is the Board required to appoint someone a board majority does not feel can serve competently? I believe the best HOA attorneys say no; if a board majority feels that applicant John Doe's service on the board would be to the detriment of the HOA, then I believe the board majority has a duty not to appoint John Doe to the vacant seat.
This board may very well just be jerking you around. But IMO what's important here is that the board has all the power. I do not think trying to force this board to either (1) agree you were elected to the board; or (2) appoint you to the board, is going to work.

I suggest continuing to read threads here. It can be instructive. It can help the reader to understand that his or her own situation is often not so much about him or her. Instead these frustrating situations are frequently due to amateur volunteers and HOA managers who are often not so smart, mixed in with a dose of owners who have to figure out what complicated statutes, bylaws and covenants say to have any chance of thwarting rogue behavior on the part of the board.

Well said.

Agree on all point.

Absolute power is very addictive and I figure I may have to play my hand better next year, because I do not see this board approve liken to be challenged to function at a higher standards.