RECALL PITFALLS

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 “retail” 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:http://www.myfloridalicense.com/dbpr////lsc/ARB/SampleWrittenRecallAgreementBallot7Lines2012.pdfDo 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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