Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: Our homeowners’ association (HOA) board is having ongoing issues with a disruptive board member who was elected by the membership at our last annual meeting. The majority of the board believes this individual’s conduct is damaging to the association, but their term is only halfway over. Can the board vote to remove them, or must this go to a community vote? What does Florida law allow, and what’s the correct process? J.P., Ft. Myers
A: Under Section 720.303(10), Florida Statutes, an elected board member may only be removed by the membership, not by vote of the remaining directors, unless the director was initially appointed to fill a vacancy. Florida law provides two methods by which a board member may be recalled with or without cause: (1) by written agreement or written ballot of a majority of the total voting interests, without a meeting; or (2) by vote of a majority of the total voting interests at a duly noticed special meeting, if permitted by the governing documents.
A recall without a meeting is typically the more streamlined method. In that case, a majority of the total voting interests must sign a written agreement or ballot to recall the director. The recall documents must then be served on the association by certified mail or by personal service, as prescribed by Florida law. Once served, the board is required to convene a meeting within five full business days to either certify or reject the recall. If the board certifies the recall, it is effective immediately and the removed director must turn over all association records and property within five full business days. If the board fails to hold the required meeting within the five-day period, the recall is deemed effective by operation of law. If the board refuses to certify the recall, it must initiate an arbitration or court proceeding within five full business days, otherwise, the recall stands.
Written recall ballots are only valid for 120 days from the date they are signed. If a recall attempt is initially defective, any valid ballots used in that attempt may be reused one time in a subsequent recall effort. Members also have the right to rescind their recall ballots prior to service on the association, provided the rescission is in writing and timely delivered.
Alternatively, if the association’s governing documents specifically allow it, members may call a special meeting to vote on a recall. Ten percent of the voting interests may initiate the meeting by providing notice to the membership in accordance with statutory meeting requirements (note that electronic notice may not be used for recall meetings). At the meeting, a majority of the total voting interests must vote to approve the recall. The board must then meet within five full business days after the adjournment of the member meeting to either certify the recall or challenge it in arbitration or court.
In addition to member-initiated recall procedures, Florida law provides for automatic removal under certain circumstances. A board member who is delinquent for more than 90 days in the payment of any fee, fine, or monetary obligation to the association is deemed removed by operation of the law. Similarly, a director who is criminally charged with felony theft or embezzlement involving association funds may also be removed automatically.
Contrary to common misconceptions, Florida law does not require a two-thirds vote of the members to remove a director unless the governing documents specifically provide for such a threshold. The statutory default is a simple majority (more than 50 percent) of the total voting interests. Moreover, the board itself does not have authority to remove an elected director; any removal must follow the statutory process. If a recall is successful and results in less than a majority of the board being removed, the remaining directors may fill the resulting vacancies. If a majority or more of the board is recalled, the vacancies are filled by the members, either during the special meeting or by ballot, depending on the method of recall.
Because of the strict procedural requirements and deadlines imposed by the statute, as well as the potential for liability exposure, any recall effort should be undertaken with careful legal guidance. The association must ensure compliance at every stage—from drafting and delivering recall instruments to certifying or challenging the outcome. In all cases, communications to the membership should be professionally presented, factual, and free of inflammatory language, particularly when a recall is based on alleged misconduct or disruption. Boards are strongly encouraged to consult counsel to protect the integrity of the process and avoid procedural pitfalls that could invalidate the recall or lead to unnecessary litigation.
Destiny Goede, Esq., is an attorney of the law firm Goede, DeBoest & Cross, PLLC.
Attorneys at Goede, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
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The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
This article originally appeared on Naples Daily News: ‘Disruptive’: What can Florida HOA homeowners do about an unruly board member?
Reporting by By Destiny Goede, attorney Goede, DeBoest & Cross, PLLC / Naples Daily News
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