HOA EDUCATION Recall Statutes

Recall of a board member or members pursuant to section 720.303(10), Florida Statutes, should be accomplished in writing by written agreement or written ballot.

1) Homeowners should choose an individual who will act as the homeowner representative during the recall effort. If the board fights the recall and petitions the Division for recall arbitration, the homeowner representative will have an opportunity to submit written rebuttal arguments to the Division arbitrator in response to the petition for arbitration filed by the board.

a) The homeowners should choose someone:

i) who is accessible

ii) who will accept certified mail from the Division

iii) who is willing to commit himself or herself to the task

b) This individual does not need to be an attorney but should be someone who is familiar with the laws and procedures relating to recall and who is willing to become involved.

2) The homeowner representative should circulate the approved recall ballot forms to the other

homeowners and get them signed by at least a majority of the total voting interests.

a) A margin of 5-10% over the minimum majority figure should be obtained

b) It is common for a number of recall ballots to be rejected by the arbitrator

c) Replacement board members should be chosen and identified on the recall ballot form if the homeowners are attempting to recall a majority

d) If recall of less than a majority of the board is sought, the board members who remain after the recall are permitted to fill the vacancies

3) Early on in the recall effort, the homeowners’ representative should check the covenants and see if voting certificates are required in order for the owners to cast a vote.

a) A voting certificate is a document used where a single parcel is owned by more than one person or is owned by a corporation or trust.

b) By use of a voting certificate, the multiple owners of a parcel all sign the voting certificate and designate one of the owners who shall be authorized to cast a vote on behalf of the parcel.

c) Make sure that the person who signs the recall ballot is the true owner of the parcel.

i) Guests, tenants, or family members of a person who owns the parcel are generally not

authorized to cast a vote on behalf of the parcel

ii) If an individual has only recently become the owner of a parcel, the person should make sure that his or her deed is recorded in the public records, and a copy of the deed should be sent along with the recall ballot to the association.

iii) If a homeowner signs a power of attorney permitting a non-owner to sign on his behalf, a copy of the power of attorney instrument should be delivered to the association along with the recall ballot for that individual.

4) In order to formally begin the recall proceeding, the representative should collect the completed

ballots and serve them on the board:

a) The original or copies of the ballots to the association by delivering them by process server or by certified mail:

i) To the registered agent of the association or

ii) The association president or

iii) The association secretary

5) Once the recall ballots have been received by the board, the board has 5 business days in which to call and hold a board meeting at which the board will decide whether to accept the recall (this is

called “certifying” the recall), or to reject the recall effort.

6) If the board rejects the recall effort, the board is required to file a petition with the Division within 5 business days of the board meeting.

a) If the board fails to timely submit the dispute to recall arbitration by filing a petition for recall

arbitration, the homeowners may elect to file a petition for arbitration under section 718.1255,

Florida Statutes.

b) The minutes of the board meeting at which the board decides to contest the recall must identify each ballot rejected along with the reason for rejecting each such ballot.

7) If the board files for recall arbitration with the Division, an arbitrator will be assigned who will review

the petition to determine if the recall has been done properly or not.

a) If the recall was done properly the arbitrator will issue a final order.

b) If the arbitrator needs more information

i) The homeowners’ representative will be given an opportunity to submit written arguments in favor of the validity of any ballots rejected by the board.

ii) The arbitrator may also require the parties to submit additional documentation including deeds and affidavits.

8) Next, the arbitrator will either issue a final order, or if disputed facts exist, the arbitrator will schedule

and conduct a final hearing and then issue a final order.

9) The final order will either certify the recall or will rule that the board was correct in challenging the

recall effort in whole or in part.

10) Depending on the facts of the case, the final order may remove board members and may designate and empower a replacement board.

11) If the Division determines that a recall attempt was defective, validly executed written ballots may be re-used in one subsequent recall effort. However, in no event is a written ballot valid for more than 120 days after the date on which it was signed.

12) The final order is effective once it is placed in the mail, and the final order is binding on the parties and is not generally appealable to the courts. The arbitrator will generally provide a copy of the final order to the parties by email, fax, and/or regular U.S. Mail.