Owner's right to rescind their vote in a Board recall in Florida

Started by ChrisS29 • 4 replies • 113 views

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ChrisS29 (Florida)
Posts: 48

Posted:

There is a recall happening in the community and it is almost complete. A small group of loyalists are trying to derail it by claiming the organizers are lying and gaining signatures by false pretenses and encouraging people to take their vote back. I predict that at the recall meeting there will be a scene as this group tries to rally people to demand their vote not be counted. The attorney is a bit shady and has made weaselly arguments already to cover for the Board skirting and in some cases violating the Declaration, Sunshine Laws, and Ch. 718. His days are numbered if a new Board takes over, so I predict also that he will try to find a way to side with the rally by double talking legalities.

I know in Chapter 720 there is a specific line that reads, "Any rescission or revocation of a member’s written recall ballot or agreement must be in writing and, in order to be effective, must be delivered to the association before the association is served with the written recall agreements or ballots.", but that's 720, and not applicable to condos under 718.

I know in the Florida Administrative Code 61B-33.003 the same line appears, however that code refers to Board member of a mobile home homeowner's association.

Unfortunately this language is not codified in 718. It doesn't help either that the information package the DBPR gives condo owners on how to do a recall is filled with references to Chapter 720, which leaves 718 in a gray area as to what parts are allowed to protect condos. So I can use 720's statutes to recall, but 720's statutes to enforce or protect the recall effort?

However, in Florida Administrative Code 61B-23.0028 this language exists. The Chapter is simply called, "THE ASSOCIATION" and the Division is the "Division of Florida Condominiums, Timeshares and Mobile Homes" I think this code applies to condos.

Do you think if the attorney tries to allow the group to disrupt the meeting and allow votes to be taken back he can make any argument against Code 61B-23.0028 applying to us?

Thank you.

ElleN (Idaho)
Posts: 1,335

Posted:

Observations:

-- Code 61B-23.0028 does apply to condominiums. See https://www2.myfloridalicense.com/condominiums-and-cooperatives/jurisdiction-regarding-the-condominium-and-cooperative-acts/#1510257446761-2e7755b8-e2ac . Many other sites say similar.

-- Code 61b-23.0028 (1) (k) states: "Any rescission or revocation of a unit owner's written recall ballot or agreement must be done in writing and must be delivered to the board prior to the board being served the written recall agreements.

-- By my reading: Anyone who wishes to rescind her or his ballot/agreement has the lawful right to do either before or at the special meeting of unit owners, provided the rescission is in writing and is properly delivered to the board. This is because the board is not "served" the written recall agreements at the special meeting of unit owners. "Serving" the board is a formal process and must be done via the HOA's registered agent.

-- Give particular attention to FS 718.112 (2) (l). Note that "paragraph" refers to the entirety of (l).

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By ChrisS29 on 03/14/2025 1:23 PM
There is a recall happening in the community and it is almost complete. A small group of loyalists are trying to derail it by claiming the organizers are lying and gaining signatures by false pretenses and encouraging people to take their vote back. I predict that at the recall meeting there will be a scene as this group tries to rally people to demand their vote not be counted. The attorney is a bit shady and has made weaselly arguments already to cover for the Board skirting and in some cases violating the Declaration, Sunshine Laws, and Ch. 718. His days are numbered if a new Board takes over, so I predict also that he will try to find a way to side with the rally by double talking legalities.

I know in Chapter 720 there is a specific line that reads, "Any rescission or revocation of a member’s written recall ballot or agreement must be in writing and, in order to be effective, must be delivered to the association before the association is served with the written recall agreements or ballots.", but that's 720, and not applicable to condos under 718.

I know in the Florida Administrative Code 61B-33.003 the same line appears, however that code refers to Board member of a mobile home homeowner's association.

Unfortunately this language is not codified in 718. It doesn't help either that the information package the DBPR gives condo owners on how to do a recall is filled with references to Chapter 720, which leaves 718 in a gray area as to what parts are allowed to protect condos. So I can use 720's statutes to recall, but 720's statutes to enforce or protect the recall effort?

However, in Florida Administrative Code 61B-23.0028 this language exists. The Chapter is simply called, "THE ASSOCIATION" and the Division is the "Division of Florida Condominiums, Timeshares and Mobile Homes" I think this code applies to condos.

Do you think if the attorney tries to allow the group to disrupt the meeting and allow votes to be taken back he can make any argument against Code 61B-23.0028 applying to us?

Thank you.

Are these signed ballots? I see no reason why an owner cannot rescind a signed ballot prior to the meeting.

ChrisS29 (Florida)
Posts: 48

Posted:

Quote:

Posted By DeanJ on 03/14/2025 8:44 PM

Are these signed ballots? I see no reason why an owner cannot rescind a signed ballot prior to the meeting.

Yes, they are signed ballots. To my knowledge one or two people have asked for their ballots back and the recall organizers have given it back to them. Which is at least cordial on their part because by my reading of statute they could say no, they have to put it in writing with the Board, then the attorney would pull those ballots when the recall is served.

However, the people who are standing by the members to be recalled are planning on causing a scene at the recall meeting to encourage anyone present to "demand" their ballots back. At this point the recall is served and no one can request it back. My concern is that the attorney will possibly allow this, whether because the attorbey wants to keep the community running like it is, or because it's possible he won't know the statutes. In my years of living in HOAs and Condos I've heard attorneys and property managers misquote or apply wrong statutes plenty of times for whatever reason. I just want people to be informed and to have a statute or administrative code to apply to the discussion if this happens.

ChrisS29 (Florida)
Posts: 48

Posted:

Quote:

Posted By ElleN on 03/14/2025 8:06 PM
Observations:

-- Code 61B-23.0028 does apply to condominiums. See https://www2.myfloridalicense.com/condominiums-and-cooperatives/jurisdiction-regarding-the-condominium-and-cooperative-acts/#1510257446761-2e7755b8-e2ac . Many other sites say similar.

-- Code 61b-23.0028 (1) (k) states: "Any rescission or revocation of a unit owner's written recall ballot or agreement must be done in writing and must be delivered to the board prior to the board being served the written recall agreements.

-- By my reading: Anyone who wishes to rescind her or his ballot/agreement has the lawful right to do either before or at the special meeting of unit owners, provided the rescission is in writing and is properly delivered to the board. This is because the board is not "served" the written recall agreements at the special meeting of unit owners. "Serving" the board is a formal process and must be done via the HOA's registered agent.

-- Give particular attention to FS 718.112 (2) (l). Note that "paragraph" refers to the entirety of (l).

Thank you!

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