Board Recall in Florida

ChrisS29 (Florida)
Posts: 48

Posted:

Hello, recently my entire Condo Board was recalled. The meeting was held, the Board certified the recall, and then left the table. Not enough of the new Board even bothered to show up to establish a quorum, so an official meeting could not be held. It's been a over a week and no indication on when a meeting will be held and it seems like from what I've heard they've unofficially taken officer titles with making it official in an organizational meeting. Their attorney even advised that without the meeting we are operating without a Board, how long can this legally go on in Florida?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Chris

You do have a BOD but they have yet to meet. I believe any member of the BOD can call for a BOD Meeting. Get one or two of them to do so. Their first order of business should be election of Officers by the BOD.

ChrisS29 (Florida)
Posts: 48

Posted:

According to the attorney they were supposed to have an organizational meeting ASAP to establish officers and legally establish who would be able to sign checks since the old Board was completely dismissed. They have not done that, so I am under the understanding that there is not a legal person in charge or that can sign for paying vendors, water bills, etc.

Two other things: I see that they filed an amended annual report to Sunbiz (State of Florida's Division of Corporation) with the new Board and their officer positions. Also, they filed with the attorney that they used to issue the recall, not the Association attorney.

Is it legal to have filed this amendment without an official organizational meeting?

Is it legal for a different attorney to file amendments for the Association when there has been no meeting to discuss dismissing our previous attorney and a Board vote to retain the new attorney?

Unfortunately this new Board lied to people to get them to sign the recall, have almost zero clue of the statutes, and essentially have admitted they've never even read the condo by-laws. I feel this new Board is going to get us in more trouble than the old Board.

ElleN (Idaho)
Posts: 4,420

Posted:

-- I think the question to ask is: Precisely which covenants, bylaws and statute sections were violated, if any? If I were you and worried the place was going downhill on any level, I would write a polite letter pointing out the violations, for starters. But being "real": Be prepared for a target to go on your back. I wish things were not this way. But they often are.

-- So far I see several reasons to argue that the new board is lawful and for one, can sign checks.

-- Is the new board violating certain open meeting requirements? Sounds like it.

-- Does failing to take certain actions at an open (meaning inter alia "noticed") meeting translate to the actions being null and void? It depends. You would have to go into more detail.

SheliaH (Indiana)
Posts: 6,964

Posted:

Well, THAT went well. This is what we mean by "be careful what you wish for - you may get it." The previous board may have been awful and deserved to be tossed, but what kind of people are you replacing them with? What on earth did the new board (such as they are) expect would happen next?

I suspect your board operates like ours, in that the homeowners elect the board and then the board elects offices from among themselves. If you have an open meeting, that’s where this should take place, as it’s important for homeowners to hear why Mr. X wants to be president or why no one wants Mr. G to serve as treasurer because he has no concept of basic math.

You’re correct that there should be officers so official association work can be done (someone has to sign the checks so the vendors can be paid). Has anyone spoke to the new board members and asked when they plan to call a meeting to do all of this?

Check your documents to see what it says regarding open meetings, electing officers and the duties of the board itself, then write a letter, as ElleN suggests. Emphasize that they’re putting the association at risk (including the assets of individual homeowners) if they don’t get themselves together and begin doing the job. If they made a wish, got what they asked for and now see this was a lot more than what they were willing to do or had the stomach for, perhaps they should commission advisory committees to help out (the committee doesn’t make decisions, but can make recommendations to the board). Getting officers need to be done sooner rather than later, so if you know who these folks are, get a friend or two to come with you to make a visit to one or two board members and see what’s up.

I hope you don’t have to go through electing yet another board but brace yourself if that becomes necessary – and this time, you might want to consider running for a spot.

PS – most of us aren’t attorneys and it’s never a good idea to get specific legal advice from the internet. You and like minded neighbors may need to pass the hat to get your own attorney to answer your questions and guide you through the next months if these people don’t do what they’ve been elected to do

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

ChrisS29 (Florida)
Posts: 48

Posted:

Unfortunately it's not what I wished for lol. The simple way to describe it is we had a community sailing towards an iceberg for years with a bad Board deferring maintenance, but people didn't care because they weren't getting assessments. Now that the insurance is sky high and the city is issuing violations, some new people got on the Board and tried to right the ship, but that means years of deferred assessments are going to hit at once. These people went around promising people the iceberg didn't exist.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

hris

It sounds like you are scared on a dues increase to right the ship. Were you one of those that got the association off course?

ChrisS29 (Florida)
Posts: 48

Posted:

Quote:

Posted By ChrisS29 on 04/09/2024 1:59 PM
Unfortunately it's not what I wished for lol. The simple way to describe it is we had a community sailing towards an iceberg for years with a bad Board deferring maintenance, but people didn't care because they weren't getting assessments. Now that the insurance is sky high and the city is issuing violations, some new people got on the Board and tried to right the ship, but that means years of deferred assessments are going to hit at once. These people went around promising people the iceberg didn't exist.

I'm not sure how you got the impression that I am scared of increases or that I was in a position to be responsible for the community failing.

I know what needs done, and I know we have to spend money to get it done. I was happy that the Board flipped enough to start getting the ship right.

The irony is that the community finally started waking up to the failures of the Board when they found out that the city has us deep in fines and liens because of this. So when the new President came in and started to get things right they got madder finding out that they'd have to spend money to get the place out of trouble.

So, they are mad when they find out the city building department is tagging building violations.
Then they are mad when they find out it's going to cost money to fix the violations.
Then they get mad when the insurance agent comes to a meeting and tells them they MUST get the work done or the policy will be cancelled.
Then they believe a group of people led by a realtor when they claim that the fixes to the violations that the city building official and insurance agent says need done, don't really need done.

Wish they would have woken up years ago, but any attempt to get anything done then was met with closed doors.

ChrisS29 (Florida)
Posts: 48

Posted:

Quote:

Posted By SheliaH on 04/09/2024 1:25 PM

You’re correct that there should be officers so official association work can be done (someone has to sign the checks so the vendors can be paid). Has anyone spoke to the new board members and asked when they plan to call a meeting to do all of this?

Any questions to the property manager are answered with "I don't know" and questions to the new Board members if you see them out are "we have to read the by-laws before we have a meeting".

SheliaH (Indiana)
Posts: 6,964

Posted:

Like I said, be careful of what you wish for - you may get it. And when I say that, I'm speaking of the entire community because it appears no one asked enough questions as to what would be required to turn things around, including the cost. It's true you wouldn't get an exact number because you have to figure out what's wrong first, consider how money you have and set priorities on what needs to be done sooner rather than later.

You and your neighbors didn't do enough of that, or sat back thinking someone would wave a magic wand, and presto, no more problems. No use pondering what might have been - now you must all work together to turn things around, starting with getting this board to wa k e up. If they can't figure out what the documents say, you should look at them yourself so you'll be able to tell if they try to do something downright illegal.

Your property manager works at the board's direction, so don't be mad at them for saying they don't know. Although it would have been nice if they'd proposed to help the board develop some sort of plan on what to do for the next 6 month. Eventually you might need to consider its role and whether they should remain your property manager, but you're a long way from that.

I think the board is overwhelmed by all the things they must address and no one wants to be in the hotter-than-Hades seat as president or treasurer. What they need is education- suggest they visit the CAI website and take a look at the education materials, starting with the board member's toolkit. Between that and reviewing the documents, they can get a grip on the job.

Meanwhile an advisory committee can take a long look at those violations from the city - t h at has to be addressed immediately but you may still be able to set priorities and focus on getting the serious stuff fixed by the end of the year. You won't fix everything, but try to get enough done do the c I ty might cut you a little slack and you won't risk losing your insurance. That's one thing you want to avoid at all costs.

As for the realtor group, ignore them - unless they can present written, verifiable proof you don't have to n worry about the city violations. Frankly, I dont trust him - call me paranoid, but considering how these investor homeowners are buying up every house they can find, I wouldn't be surprised if he wants the community to fail, so he can buy the houses for cheap and then get a fatter commission flipping it to a large investor.

You and your neighbors have work to do and there's no point in pointing fingers now. Start the hard work of turning things around and then you can see what safeguards should be put in place to reduce the risk of it happening again. Good luck to you

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

JanetB2 (Colorado)
Posts: 4,219

Posted:

After the old Board was recalled … was an election held to elect new Board members?

ChrisS29 (Florida)
Posts: 48

Posted:

Quote:

Posted By JanetB2 on 04/10/2024 12:52 AM
After the old Board was recalled … was an election held to elect new Board members?

No, they pre-filled out the recall ballots with the full board recalled and the new board they wanted in it's place. No titles though.

LoriM15 (Florida)
Posts: 1,009

Posted:

It's customary to have an organizational meeting immediately after an election, but it's not required. I believe the election of officers must be done at a properly noticed meeting, however.

But it doesn't really matter who is what position on the board. They all still get the same votes.

ChrisS29 (Florida)
Posts: 48

Posted:

Quote:

Posted By LoriM15 on 04/10/2024 1:48 PM
It's customary to have an organizational meeting immediately after an election, but it's not required. I believe the election of officers must be done at a properly noticed meeting, however.

But it doesn't really matter who is what position on the board. They all still get the same votes.

According the attorneys it does matter as there would no one on file with an entirely new Board that is authorized to officially sign anything on behalf of the Board, like President or Treasurer.

The customary thing to do is that Organizational meeting after the Annual meeting, in this case the new Board didn't have a quorum to have a meeting after the Board stepped down. I can't seem to find anywhere online that discusses whether a Board can organize itself away from an open meeting though, especially in the case of a recall.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ChrisS29 on 04/10/2024 3:17 PM
I can't seem to find anywhere online that discusses whether a Board can organize itself away from an open meeting though, especially in the case of a recall.

Do you know what Florida Statute FS 718 is?

Have you checked it?

From FS 718: They were supposed to do their organizational meeting in open session (with notice to owners et cetera).

ChrisS29 (Florida)
Posts: 48

Posted:

Quote:

Posted By ElleN on 04/10/2024 4:04 PM

Posted By ChrisS29 on 04/10/2024 3:17 PM
I can't seem to find anywhere online that discusses whether a Board can organize itself away from an open meeting though, especially in the case of a recall.

Do you know what Florida Statute FS 718 is?

Have you checked it?

From FS 718: They were supposed to do their organizational meeting in open session (with notice to owners et cetera).

Yes, I do know 718 is. Yes, I have checked it.

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0718/0718.html

There are zero hits when searching "Organizational". There are nine hits for "Organization", eight of which are under "718.1224 Prohibition against SLAPP suits.". The ninth use is under "718.504 Prospectus or offering circular." which doesn't have to do with meeting.

If you know the section, or what other name an Organizational Meeting goes by and it's requirement to be in an open meeting, could you please share that.

ElleN (Idaho)
Posts: 4,420

Posted:

From experience, within the statute what one wants to seek is when a board meeting has to be open. Whence one will find this:

718.112 (2)
(c) Board of administration meetings.—Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. ...
.
.
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1. Adequate notice of all board meetings, which must specifically identify all agenda items, must be posted conspicuously on the condominium property at least 48 continuous hours before the meeting except in an emergency. ...
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.
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3. Notwithstanding any other law, the requirement that board meetings and committee meetings be open to the unit owners does not apply to:
a. Meetings between the board or a committee and the association’s attorney, with respect to proposed or pending litigation, if the meeting is held for the purpose of seeking or rendering legal advice; or
b. Board meetings held for the purpose of discussing personnel matters.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By JohnC46 on 04/09/2024 2:42 PM
hris

It sounds like you are scared on a dues increase to right the ship. Were you one of those that got the association off course?

Here we go again...bashing the person asking for help.

KerryL1 (California)
Posts: 14,550

Posted:

Say, Chris, sometimes a state's nonprofit corporations codes can help when a question, as with yours, probably applies to all such corporations. I'm waaaay too slow to check such codes, but take a look. Good luck.

LoriM15 (Florida)
Posts: 1,009

Posted:

Quote:

Posted By ChrisS29 on 04/10/2024 3:17 PM

Posted By LoriM15 on 04/10/2024 1:48 PM
It's customary to have an organizational meeting immediately after an election, but it's not required. I believe the election of officers must be done at a properly noticed meeting, however.

But it doesn't really matter who is what position on the board. They all still get the same votes.

According the attorneys it does matter as there would no one on file with an entirely new Board that is authorized to officially sign anything on behalf of the Board, like President or Treasurer.

The customary thing to do is that Organizational meeting after the Annual meeting, in this case the new Board didn't have a quorum to have a meeting after the Board stepped down. I can't seem to find anywhere online that discusses whether a Board can organize itself away from an open meeting though, especially in the case of a recall.

I hate to disagree with your attorney, but any of the board members would be authorized to sign official documents. In most community bylaws, the president just runs the meeting. They have no special powers, just a different title. In reality, the president usually does sign documents and does more than run the meetings. But officially, all board members have the authority to sign on behalf of the HOA.

The state statute has a lot of detail but leaves a lot up to individual governing documents. They cannot organize legally outside of a properly noticed meeting. If your bylaws say it must be right after the election, then that should have happened. But you can have a properly noticed meeting but not a quorum, then it's not a real meeting. So they can't organize until they have a properly noticed meeting AND a quorum. Because of the Sunshine Laws for HOAs and COAs in Florida, there are no "executive sessions" or private meetings, except for very, very specific cases. Electing officers is not one of those specific cases. So they must meet in an open meeting to do it. You are allowed to exchange emails to discuss items, but no decisions or voting can be done except in an open meeting.

I'm not quite sure why you're so hung up on this. Your community clearly has some issues. I guess these new board members stepped up to run things but either are not taking this seriously or don't want the responsibility. This happens when a group of disgruntled homeowners decides to take charge (for the right or the wrong reasons). They get the old board out but don't realize the legal ramifications of what they have done.

ChrisS29 (Florida)
Posts: 48

Posted:

Quote:

Posted By ElleN on 04/10/2024 4:24 PM
From experience, within the statute what one wants to seek is when a board meeting has to be open. Whence one will find this:

Correct, however I was looking for rules regarding conducting this business at a specific styled meeting, like the Budget, Annual, or Special Assessment meeting. Otherwise there is no specific guideline on whether this has to be done at an open meeting or decided among themselves.

Quote:

Posted By KerryL1 on 04/10/2024 7:15 PM
Say, Chris, sometimes a state's nonprofit corporations codes can help when a question, as with yours, probably applies to all such corporations. I'm waaaay too slow to check such codes, but take a look. Good luck.

Thank you. I checked out the statute on that and there is a section for Organizational Meetings, but it's a but vague on how that applies to condo meetings. It's a start though.

Quote:

Posted By LoriM15 on 04/11/2024 7:09 AM

Posted By ChrisS29 on 04/10/2024 3:17 PM

Posted By LoriM15 on 04/10/2024 1:48 PM
It's customary to have an organizational meeting immediately after an election, but it's not required. I believe the election of officers must be done at a properly noticed meeting, however.

But it doesn't really matter who is what position on the board. They all still get the same votes.

According the attorneys it does matter as there would no one on file with an entirely new Board that is authorized to officially sign anything on behalf of the Board, like President or Treasurer.

The customary thing to do is that Organizational meeting after the Annual meeting, in this case the new Board didn't have a quorum to have a meeting after the Board stepped down. I can't seem to find anywhere online that discusses whether a Board can organize itself away from an open meeting though, especially in the case of a recall.

I hate to disagree with your attorney, but any of the board members would be authorized to sign official documents. In most community bylaws, the president just runs the meeting. They have no special powers, just a different title. In reality, the president usually does sign documents and does more than run the meetings. But officially, all board members have the authority to sign on behalf of the HOA.

The state statute has a lot of detail but leaves a lot up to individual governing documents. They cannot organize legally outside of a properly noticed meeting. If your bylaws say it must be right after the election, then that should have happened. But you can have a properly noticed meeting but not a quorum, then it's not a real meeting. So they can't organize until they have a properly noticed meeting AND a quorum. Because of the Sunshine Laws for HOAs and COAs in Florida, there are no "executive sessions" or private meetings, except for very, very specific cases. Electing officers is not one of those specific cases. So they must meet in an open meeting to do it. You are allowed to exchange emails to discuss items, but no decisions or voting can be done except in an open meeting.

I'm not quite sure why you're so hung up on this. Your community clearly has some issues. I guess these new board members stepped up to run things but either are not taking this seriously or don't want the responsibility. This happens when a group of disgruntled homeowners decides to take charge (for the right or the wrong reasons). They get the old board out but don't realize the legal ramifications of what they have done.

The reason for the attorney saying is that the entire Board was recalled and the Association would have to file an amended report to the State. The report has the officer positions assigned and no official meeting was held to assign them. Also the attorney that filed is not Association attorney, he is their attorney they hired to handle the recall. No meeting was held to vote to terminate the association attorney and retain the new attorney. Wouldn't you think that put's the Association in a bit of a legal limbo?

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ChrisS29 on 04/11/2024 8:22 AM

Posted By ElleN on 04/10/2024 4:24 PM
From experience, within the statute what one wants to seek is when a board meeting has to be open. Whence one will find this:

Correct, however I was looking for rules regarding conducting this business at a specific styled meeting, like the Budget, Annual, or Special Assessment meeting. Otherwise there is no specific guideline on whether this has to be done at an open meeting or decided among themselves.

I respectfully disagree. The statute (which is not a mere guideline) is thoroughly specific.

But I would just be repeating what I already quoted. Have you considered hiring an attorney to respond to your questions?

Quote:

Posted By ChrisS29 on 04/11/2024 8:22 AM

Posted By KerryL1 on 04/10/2024 7:15 PM
Say, Chris, sometimes a state's nonprofit corporations codes can help when a question, as with yours, probably applies to all such corporations. I'm waaaay too slow to check such codes, but take a look. Good luck.

Thank you. I checked out the statute on that and there is a section for Organizational Meetings, but it's a but vague on how that applies to condo meetings. It's a start though.

The nonprofit corporation statute at FS 617 is not apposite here. In other words, since it conflicts with FS 718, FS 718, being apposite, controls.

Quote:

Posted By ChrisS29 on 04/11/2024 8:22 AM
Also the attorney that filed is not Association attorney, he is their attorney they hired to handle the recall. No meeting was held to vote to terminate the association attorney and retain the new attorney. Wouldn't you think that put's the Association in a bit of a legal limbo?

How do you know an executive session (so not open) meeting was not held? In my opinion this might qualify as a topic that the board is legally allowed to discuss and vote on in executive session.

It's in legal limbo only until someone challenges the Board. Otherwise, with each passing day, the chances that, if push came to shove and this went to court, an owner would prevail in such a challenge diminish.

What is keeping you from writing the board with a list of your alleged violations? If you do so, the board might very well see the error of its ways. Getting the new board started on the right foot (more or less) is important.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By ElleN on 04/11/2024 8:35 AM

It's in legal limbo only until someone challenges the Board.

Correction: It's in legal limbo only // if // someone challenges the board.

LoriM15 (Florida)
Posts: 1,009

Posted:

I also think you are preoccupied with things that are not that serious. 1) the Sunbiz registration should be up to date, but a report only needs to be filed once a year. It's not critical that it is completely correct with officer positions immediately after a changeover. Do you have a Property Manager who handles correspondan? What address is on Sunbiz for the association? Do you have a registered agent (not necessarily your attorney - our attorney does not offer registered agent services). Those are the important things. Sunbiz is not immediate. 2) Unless the board voted to pay a retainer to the attorney, it doesn't matter who is working on association business as long as a valid board member (usually the president) sends the information to the attorney. We currently have two attorneys since we are in the process of changing over to a new firm. The old one is still handling a couple of matters for us. The new one is handling some matters. If the new board hired a new attorney and signed a letter of engagement, they should discuss at a properly noticed meeting, but they can discuss by email in advance of the meeting.

At this point, you seem very concerned with the way things are being handled. I think the advice that you need to consult your own attorney is a good one.