CCFJ COMMUNITY ASSOCIATION BLOG

KILLING RECALLS IN HOAs?

An Opinion By Jan Bergemann

Published March 11, 2025

HB 983 -- Homeowners Associations -- filed by Representative JC Porras is a very good bill with good new HOA election provisions (FS 720.306), but the language trying to amend the Recall Provisions in FS 720.303(10) are outright horrible and plainly defeat the purpose.

It starts with the provisions for the service of the recall agreement:

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(b)1. Board directors may be recalled by an agreement ~~in writing or by written ballot~~ without a membership meeting. The recall agreement ~~in writing or the written ballots~~, or a copy thereof, must ~~shall~~ be served on the association by registered ~~certified~~ mail ~~or by personal service~~ in the manner authorized by chapter 48 and the Florida Rules of Civil Procedure.

Registered mail has to be signed for by somebody who is authorized. But there is no law forcing anybody to sign for it. So, if nobody signs, it will be returned to sender after about 4 weeks. Even if somebody signs the mail after quite some time, it gives the board time to collect rescissions from owners, since revocations can be collected until recall is officially served -- meaning somebody signed for the mail. And we know how convincing board members can be demanding rescissions -- starting with the threat of fines.

And then it gets even worse:

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(e) ~~(g)~~ If the board fails to duly notice and hold the required meeting or at the conclusion of the meeting the board determines that the recall is facially invalid ~~fails to file the required petition or action~~, the parcel owner representative may file a petition ~~or a court action~~ under s. 718.1255 or file an action in a court of competent jurisdiction challenging the board's failure to act or determination that the recall is invalid. The petition or court action must be filed within 30 60 days after the expiration of the applicable 5-full-business-day period. The review of a petition or court action under this paragraph is limited to the sufficiency of service on the board and the facial validity of the recall ~~written~~ agreement or ballots filed. ~~The association must be named as the respondent.~~

The new wording now requires the representative of the owners voting for recall to file for arbitration if the board fails to hold the meeting or declares the recall facially invalid. Now the filing fee has to be paid by the owners, not any longer by the association. Example for being facially invalid: Insufficient number of recall petitions! Remember: Registered mail doesn't give you proof how many recall petitions were filed, service by process server did! Or they just declare it facially invalid, inventing any kind of reason. All that means: NO RECALL YET!

Now starts the arbitration process, a process that can take months if the board has a smart attorney. And here comes the time for the next annual meeting with election -- and the recall is moot.

If the board members the owners trying to recall are halfway smart, the owners will never succeed if this language is enacted. I always wonder why Legislators want to make changes to provisions that really work. There are so many provisions that really don’t work! How about making changes to these provisions-- or create real enforcement for all the provisions that are nearly impossible to enforce if you don't have tens of thousands of dollars to pay for litigation?