DBPR RECALL ARBITRATION

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

January 8, 2006

Recalls of association board members are occurring more frequently. Recall provisions have been added to FS 720 for HOAs, the same as the recall provisions enacted in the Condo Act. The Condo Act provided the provision in FS 718.312(2)(j) for recall by written agreement. The HOA Task Force added recall provisions to the HOA Statutes in 2004 [FS 720.303(10)]

Recall of boards has become a very prominent feature in association life and is considered the inexpensive way out, if boards are unwilling to listen to the voice of the owners.

The idea was great -- creating a fast and efficient way for owners to remove board members who become "too involved" with their personal pet projects without considering the will of the association members.

The program started off really well. The written recall petition is easy to manage for owners and boards alike. It's simply a matter of counting numbers and figuring out if the people signing are actual members, meaning being named on the deed.

During discussions at HOA Task Force meetings it sounded as easy as 1-2-3!

But it only looked easy until attorneys and DBPR election arbitrators got involved! In recent times we see more and more good recalls not being certified. Not for any valid reasons, but in many cases just to challenge the recall and buy the sitting board some more time to finish their pet projects, most often the reason that led to the recall. It seems the attorneys are telling "their boards" to challenge the recall, find some dubious reason -- as long as there is something listed that sounds halfway reasonable.

Some excuses lately:
"Nine of the petitioners didn't know what they were signing!"

You still think that's a reasonable excuse? Try this one:
"The petitioners didn't reach the necessary percentage for a valid recall. They didn't consider the 24 units the developer never built, but were listed in the initial plans!"

Actually, these 24 “ghost units” never before had been entered in the count for necessary quorums at meetings. But now it's obviously a convenient reason to justify giving the board another 60-90 days in power, enough time to finish their pet projects:

Sign for the bank loan the owners didn't want!
Sign the contracts with the companies the owners didn't want hired!
Sign overprized contracts, binding the association for many years!

Some of these "excuses" would be funny, if the whole scenario wasn’t so sad!

Failure to certify the recalls can often lead to serious financial damages to the association members. Since recall arbitration is mandatory, there is no way to stop the recalled boards from doing further harm to the community. In a court of law the owners could file an injunction to stop boards from making any further commitments in the name of the corporation. Not so with the DBPR!

DBPR Deputy Secretary Andy Edwards wrote to me in a recent e-mail:

"The average time to close a recall election case last year was 61 days!"

The way it was phrased gave me the impression that Edwards was actually "proud" of this number!

Since I'm not an attorney, maybe I make the mistake of approaching the issue with common sense? When the recall issue was discussed during meetings of the HOA Task Force, it was very obvious that the procedure was a cut deal, with no frills attached.

"Owners sign the recall ballots and serve the petition on the board! The Board then has two options: Certify the recall petition or file for recall arbitration with a detailed explanation why the recall was not certified. The explanation given by the sitting board has to be very clear and easy to understand. Faulty petitions have to be marked with an explanation. The recalled board is obligated to give the arbitrator exact reasons for not certifying the recall."

The Florida Statutes are in my opinion very straightforward about the way a recall should be handled. In most cases it's just a matter of counting how many actual owners really signed the petition.

How it can take an “average of 61 days” to come to a final ruling? I don’t understand that at all.

I have gotten the impression that some specialized attorneys actually enjoy recall arbitration -- because it's one last chance to make some big bucks before the new replacement board kicks them out!

It is imperative for the welfare of associations and the owners that rulings regarding recall arbitrations must be handed down real fast. We don't need more lengthy legal proceeding just to count the numbers.

WANT TO RECALL YOUR BOARD? Easy 1-2-3 Instructions