The recall provision for
HOAs was created by the bill that was filed as the result of the
HOA TASK FORCE MEETINGS (2003 - 2004). It works absolutely
perfectly and we hope that there will be no legislative changes in
the near future.
This is the latest wording regulating recalls
by written petition in FS 720 (HOA ACT):
FS 720.303(10) RECALL
OF DIRECTORS.
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(a)1. Regardless
of any provision to the contrary contained in
the governing documents, subject to the
provisions of s. 720.307 regarding
transition of association control, any member of
the board of directors may be recalled and
removed from office with or without cause by a
majority of the total voting interests.
2. When
the governing documents, including the
declaration, articles of incorporation, or
bylaws, provide that only a specific class of
members is entitled to elect a board director or
directors, only that class of members may vote
to recall those board directors so elected.
(b)1. Board
directors may be recalled by an agreement in
writing or by written ballot without a
membership meeting. The agreement in writing or
the written ballots, or a copy thereof, shall be
served on the association by certified mail or
by personal service in the manner authorized by
chapter 48 and the Florida Rules of Civil
Procedure.
2. The
board shall duly notice and hold a meeting of
the board within 5 full business days after
receipt of the agreement in writing or written
ballots. At the meeting, the board shall either
certify the written ballots or written agreement
to recall a director or directors of the board,
in which case such director or directors shall
be recalled effective immediately and shall turn
over to the board within 5 full business days
any and all records and property of the
association in their possession, or proceed as
described in paragraph (d).
3. When
it is determined by the department pursuant to
binding arbitration proceedings or the court in
an action filed in a court of competent
jurisdiction that an initial recall effort was
defective, written recall agreements or written
ballots used in the first recall effort and not
found to be defective may be reused in one
subsequent recall effort. However, in no event
is a written agreement or written ballot valid
for more than 120 days after it has been signed
by the member.
4. Any
rescission or revocation of a member's written
recall ballot or agreement must be in writing
and, in order to be effective, must be delivered
to the association before the association is
served with the written recall agreements or
ballots.
5. The
agreement in writing or ballot shall list at
least as many possible replacement directors as
there are directors subject to the recall, when
at least a majority of the board is sought to be
recalled; the person executing the recall
instrument may vote for as many replacement
candidates as there are directors subject to the
recall.
(c)1. If
the declaration, articles of incorporation, or
bylaws specifically provide, the members may
also recall and remove a board director or
directors by a vote taken at a meeting. If so
provided in the governing documents, a special
meeting of the members to recall a director or
directors of the board of administration may be
called by 10 percent of the voting interests
giving notice of the meeting as required for a
meeting of members, and the notice shall state
the purpose of the meeting. Electronic
transmission may not be used as a method of
giving notice of a meeting called in whole or in
part for this purpose.
2. The
board shall duly notice and hold a board meeting
within 5 full business days after the
adjournment of the member meeting to recall one
or more directors. At the meeting, the board
shall certify the recall, in which case such
member or members shall be recalled effective
immediately and shall turn over to the board
within 5 full business days any and all records
and property of the association in their
possession, or shall proceed as set forth in
paragraph (d).
(d) If
the board determines not to certify the written
agreement or written ballots to recall a director or
directors of the board or does not certify the
recall by a vote at a meeting, the board shall,
within 5 full business days after the meeting, file
an action with a court of competent jurisdiction or
file with the department a petition for binding
arbitration under the applicable procedures in ss. 718.112(2)(l)
and 718.1255 and
the rules adopted thereunder. For the purposes of
this section, the members who voted at the meeting
or who executed the agreement in writing shall
constitute one party under the petition for
arbitration or in a court action. If the arbitrator
or court certifies the recall as to any director or
directors of the board, the recall will be effective
upon the final order of the court or the mailing of
the final order of arbitration to the association.
The director or directors so recalled shall deliver
to the board any and all records of the association
in their possession within 5 full business days
after the effective date of the recall.
(e) If
a vacancy occurs on the board as a result of a
recall and less than a majority of the board
directors are removed, the vacancy may be filled by
the affirmative vote of a majority of the remaining
directors, notwithstanding any provision to the
contrary contained in this subsection or in the
association documents. If vacancies occur on the
board as a result of a recall and a majority or more
of the board directors are removed, the vacancies
shall be filled by members voting in favor of the
recall; if removal is at a meeting, any vacancies
shall be filled by the members at the meeting. If
the recall occurred by agreement in writing or by
written ballot, members may vote for replacement
directors in the same instrument in accordance with
procedural rules adopted by the division, which
rules need not be consistent with this subsection.
(f) If
the board fails to duly notice and hold a board
meeting within 5 full business days after service of
an agreement in writing or within 5 full business
days after the adjournment of the member recall
meeting, the recall shall be deemed effective and
the board directors so recalled shall immediately
turn over to the board all records and property of
the association.
(g) If
the board fails to duly notice and hold the required
meeting or fails to file the required petition or
action, the parcel owner representative may file a
petition or a court action under s. 718.1255 challenging
the board's failure to act. The petition or action
must be filed within 60 days after the expiration of
the applicable 5-full-business-day period. The
review of a petition or action under this paragraph
is limited to the sufficiency of service on the
board and the facial validity of the written
agreement or ballots filed.
(h) If
a director who is removed fails to relinquish his or
her office or turn over records as required under
this section, the circuit court in the county where
the association maintains its principal office may,
upon the petition of the association, summarily
order the director to relinquish his or her office
and turn over all association records upon
application of the association.
(i) The
minutes of the board meeting at which the board
decides whether to certify the recall are an
official association record. The minutes must record
the date and time of the meeting, the decision of
the board, and the vote count taken on each board
member subject to the recall. In addition, when the
board decides not to certify the recall, as to each
vote rejected, the minutes must identify the parcel
number and the specific reason for each such
rejection.
(j) When
the recall of more than one board director is
sought, the written agreement, ballot, or vote at a
meeting shall provide for a separate vote for each
board director sought to be recalled.
(k) A
board member who has been recalled may file an
action with a court of competent jurisdiction or a
petition under ss. 718.112(2)(l)
and 718.1255 and
the rules adopted challenging the validity of the
recall. The petition or action must be filed within
60 days after the recall is deemed certified. The
association and the parcel owner representative
shall be named as respondents.
(l) The
division or a court of competent jurisdiction may
not accept for filing a recall petition or action,
whether filed under paragraph (b), paragraph (c),
paragraph (g), or paragraph (k) and regardless of
whether the recall was certified, when there are 60
or fewer days until the scheduled reelection of the
board member sought to be recalled or when 60 or
fewer days have not elapsed since the election of
the board member sought to be recalled.
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Please don't attempt a RECALL BY
MEETING -- very complicated and often ends in endless litigation
with very mixed results.
ATTENTION:
HOMEOWNERS SIGNING RECALL
PETITIONS WILL NOT BE LIABLE FOR ANY LEGAL AND/OR ATTORNEY'S FEES --
AS LONG AS THEY DON'T HIRE THEIR OWN ATTORNEY TO REPRESENT THE
HOMEOWNERS THAT VOTE FOR RECALL!
PLANTER'S
WALK HOMEOWNERS' ASSOCIATION, INC. v. Homeowners Voting For Recall
DISCLAIMER:
THESE ARE JUST GENERAL GUIDELINES TO DEAL WITH THE RECALL PROVISIONS
OF FS 720.
More detailed information, forms and arbitration rulings
are on password protected sites.
You get
passwords by
sending e-mail to: [email protected]
In your
e-mail please include: Name of Association, Number of Homes and
-- if available -- the name of the law firm your board retained. Thank
you!
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