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FILLING VACANCIES ON THE BOARD
By
Eric Glazer, Esq.
Published September 14, 2020
In light of the death of Ruth Bader Ginsburg on Friday and the
controversy surrounding filling the Supreme Court vacancy, I
thought it best to discuss the procedures required by our laws
when there is a vacancy on a condo or HOA board of directors.
For condominiums and HOAs:
Unless otherwise provided in the bylaws, any vacancy occurring
on the board before the expiration of a term may be filled by
the affirmative vote of the majority of the remaining directors,
even if the remaining directors constitute less than a quorum,
or by the sole remaining director. In the alternative, a board
may hold an election to fill the vacancy….. Unless otherwise
provided in the bylaws, a board member appointed or elected
under this section shall fill the vacancy for the unexpired term
of the seat being filled.
So does the board have to fill the vacancy?
I think it does, unless the bylaws say otherwise. The statute
makes the board choose one way or the other to fill the
vacancy. Either the remaining directors agree on who is going
to fill the vacancy and appoint him or her to the Board, or if
they cannot agree, the choice is to be left up to the unit
owners in an election to fill that vacant seat.
Suppose there are so many vacancies that there is no longer a
quorum of Board members?
You don’t want to know the answer.
For both condos and HOAs:
(1) If an association fails to fill vacancies on the board of
directors sufficient to constitute a quorum in accordance with
the bylaws, any member may give notice of the member’s intent to
apply to the circuit court within whose jurisdiction the
association lies for the appointment of a receiver to manage the
affairs of the association. The form of the notice shall be as
follows:
NOTICE OF INTENT TO APPLY FOR RECEIVERSHIP
YOU ARE HEREBY NOTIFIED that the undersigned member of (name
of condo or homeowners’ association) intends to file a
petition in the circuit court for appointment of a receiver to
manage the affairs of the association on the grounds that the
association has failed to fill vacancies on the board of
directors sufficient to constitute a quorum. This petition will
not be filed if the vacancies are filled within 30 days after
the date on which this notice was sent or posted, whichever is
later. If a receiver is appointed, the receiver shall have all
of the powers of the board and shall be entitled to receive a
salary and reimbursement of all costs and attorney’s fees
payable from association funds.
(name and address of petitioning member)
(2) The notice required by subsection (1) must be provided by
the member to the association by certified mail or personal
delivery, must be posted in a conspicuous place within the condo
or homeowners’ association, and must be provided to every member
of the association by certified mail or personal delivery. The
notice must be posted and mailed or delivered at least 30 days
prior to the filing of a petition seeking receivership. Notice
by mail to a member shall be sent to the address used by the
county property appraiser for notice to the member.
(3) If the association fails to fill the vacancies within 30
days after the notice required by subsection (1) is posted and
mailed or delivered, the member may proceed with the petition.
(4) If a receiver is appointed, all members shall be given
written notice of such appointment.
(5) The association shall be responsible for the salary of the
receiver, court costs, and attorney’s fees. The receiver shall
have all powers and duties of a duly constituted board of
directors and shall serve until the association fills vacancies
on the board sufficient to constitute a quorum and the court
relieves the receiver of the appointment.
Trust me --- you really don’t want a receiver appointed for your
association. Board members serve for free --- receiver don’t,
as you can see. If you think you have money problems now ----
the cost and expense of a receiver can make it worse. It is
imperative to do your best to get a quorum of board members to
serve.
We’ll discuss some other election and budget issues in the next
few weeks as we approach budget and election season.
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Sachs, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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