RE Q&A: Can Non-Participating HOA Board Members Be Removed?
For some reason, a newly elected board member hasn’t show up for meetings. What does Fla. law say about removing an elected board member from office?
STUART, Fla. – Question: I am on the board of my condominium. At the most recent election, a new board member was elected and added to the board. Since the first meeting following the election, this person has not shown up or made themselves available for any other board meetings. It has caused issues with the board being able to reach a quorum to hold meetings, which has delayed the board from taking action on necessary items.
I don’t know why this person ran for the board if they did not intend on participating. Is there anything that we can do to remove this person from the board? – M.V., West Palm Beach, Fla.
Answer: The election of directors is reserved to the members of the association pursuant to the Florida Condominium Act. As such, the board of directors has no power to unilaterally remove one of the directors.
However, if the non-participating board member is causing enough of a problem that the members have taken notice, the members do have the option of recalling the board member. This is accomplished under Section 718.112(2)(j), Florida Statutes, which provides a director, with or without cause, may be removed by the vote or agreement in writing of a majority of voting interests of the association.
A recall may be triggered by either (a) the board’s receipt of a written recall petition from a majority of the voting interests of the association or (b) the board’s receipt of a written request for a special meeting of the members from at least 10% of the voting interests of the association.
In the former scenario, the written petition must be served upon the association by certified mail or personal service. Upon receipt, the board must duly notice and hold a board meeting within five business days, and the board member shall be recalled effective immediately upon the conclusion of the board meeting, provided that the recall is facially valid (more on that below).
In the latter scenario, upon the board’s receipt of the written request for a special meeting, the board must duly notice and hold a meeting of the members which states the specific purpose of the meeting. At the meeting, the members present in person or by proxy will vote on removal of the board member.
If a majority – 51% – of the total voting interests of the association votes in favor of removal, the recall is deemed effective. The board must then notice and hold a board meeting within five business days, at which the board will vote to approve the recall and the board member shall be recalled effective immediately.
The board can reject the recall petition, but only if the recall petition is facially deficient.
The most common reason for the petition being facially deficient is that the number of members that signed or voted for recall did not actually add up to a majority for some reason. An example of this could be some of the members who voted had their voting rights suspended or a corporate owner did not have a voting certificate on record with the association and one was required.
A recalled board member must turn over to the board, within 10 business days after the recall is approved, any and all records and property of the association in their possession. If a vacancy occurs on the board as a result of a recall or removal, and less than a majority of the board members are removed, the vacancy may be filled by the affirmative vote of a majority of the remaining directors.
Avi S. Tryson, Esq., is partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
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