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RECALL
PITFALLS
By
Eric Glazer, Esq.
Published June 9, 2014
As
many of you already know, just because your next election is far
off into the future, this doesn’t mean that in the interim,
the current board members can’t be removed from office.
The “recall” process is a procedure that can be used
in both condominiums and HOAs.
In simple terms, a majority of the owners must sign
separate “ballots” in which they agree to “recall” or
“retain” the current members of the Board.
It sounds simple enough, but in reality it is far more
difficult than it sounds. I
have met with countless numbers of people over the years that
worked for months getting the members of their communities to
agree to recall some or all of the current board members, only
to learn that they wasted their time because of the following
common errors:
1.
They did not use the proper form: Use
the form that the Department of Business and Professional
Regulation provides for this purpose.
It can be found at:
WRITTEN RECALL AGREEMENT / BALLOT
Do
not try and re-invent the wheel and prepare your own
“petition.” They
are almost always insufficient as they fail to give the voter
the option to “retain” the board member and not just
“recall” them. They
often times also fail to name a unit owner representative.
2.
They incorrectly marked one ballot that checked off the “recall”
boxes for the board members ---- photocopied them --- and had
the unit owners sign the photocopied ballots.
This is a big error.
Do not photocopy pre-marked ballots.
Everyone must actually vote his or her ballot.
3.
The ballots were
voted by people who were not authorized to vote for the home or
unit. Only the owner of the unit can execute the ballot, not
the renter if the unit or home is being rented.
If the property is owned by more than one person, your
association may require a voting certificate to be on file with
the association that must be signed by all owners, and which
specifically identifies the owner who is allowed to cast the
ballot for that property. Make
sure only that person authorized in the voting certificate is
the one executing the recall ballot.
If you are not sure if a voting certificate is already on
file with the association or what it may say, execute a new one
and submit it with your recall ballot.
4.
The ballot failed to include replacement candidates.
Look at the recall ballot.
As you will see, if less than a majority of the Board
members are being recalled, the ballot does not need to name
replacement candidates who are willing to serve.
However, if a majority of the Board members are being
recalled, replacement candidates must be named.
5.
The ballots were served on the Board too early or too late.
The law now provides that a recall arbitration
petition cannot be filed for the first sixty (60) days following
the election and not within sixty (60) days of an upcoming
election.
Assuming
that all is now done properly, and a majority of the owners
voted in favor of the recall, the ballots get served on the
Board. Within five
(5) days of service, the Board must hold a meeting to determine
whether or not to “certify” the recall.
If the Board and their attorney disqualify enough ballots
and the result is that a majority of the owners did not vote to
recall the Board members, the Board will vote not to certify the
recall. By law, the
association now has five (5) days to file a petition for
arbitration with the Department of Business and Professional
Regulation. The case
will be assigned to an arbitrator and a final hearing will
ultimately be held to determine if the Board members stay or go.
Again,
the process in theory sounds simple……get a majority of the
people to vote someone off the Board.
In practice it is often difficult, time consuming and
frustrating. This is
one area of the law where hiring an attorney with experience in
this area may prove beneficial.
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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 is currently entering his 20th year as a
Florida
lawyer practicing |
community association law and is the owner of
Glazer and Associates, P.A. an eight attorney law firm in
Orlando
and Hollywood. For the past two years Eric has been the host of Condo Craze and
HOAs, a weekly one hour radio show 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 7,500 Floridians. He is certified as a
Circuit Court Mediator by The Florida Supreme Court and has
mediated dozens of disputes between associations and unit
owners. Finally, he recently argued the Cohn v. Grand
Condominium case before The Florida Supreme Court, which is
perhaps the single most important association law case decided
by the court in a decade.
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