Board Members Can Be Recalled Without Cause

Q:        I have heard that a condominium board member can be removed from the condominium association board by a process called recall. What causes can be used to justify the recall? (C.Q. via e-mail)

A:        Section 718.112(2)(j) of the Florida Condominium Act states that any board member can be recalled and removed from office with or without cause by a vote or written agreement of a majority of all voting interests.

While cause could be specified to justify the recall of a board member, just cause does not have to be shown.

After a director is recalled, the law allows the board to fill the director’s vacancy by appointing a new director, pursuant to a majority vote of the remaining directors, even if it is less than a quorum. The appointed director then serves the remainder of the recalled director’s term. A different process is used if a majority of the board, or the entire board, is recalled.

Homeowners’ associations generally use a similar process for recall.

Q:        What happens if there is a tie between two candidates running for a board of directors’ seat at the annual meeting? Do both candidates win? (E.A. via e-mail)

A:        No. The Florida Administrative Code, Rule 61B-23.0021, states that if two or more candidates for the same position receive the same amount of votes, the association must conduct a runoff election.

At the runoff election, the only eligible candidates are the candidates who received the tie vote at the previous election. The runoff election cannot be held less than 21 days or more than 30 days after the date of the election where the tie vote occurred.

The Code also requires the association to send notice of the runoff election within 7 days of the election where the tie occurred. The notice must be mailed or personally delivered to the members, and must include the date of the runoff election, a ballot, required envelopes, and copies of any candidate information sheets previously submitted to the association by the runoff candidates.

Q:        The board of my condominium association is considering adopting new rules, including rules which change some of the restrictions contained in the condominium declaration. Can board rules change the declaration of condominium? (M.O. via e-mail)

A:        No. Board made rules cannot conflict with any right which is expressly granted or inferable from the declaration. Further, board rules must be “reasonable.” The rules must also be adopted in a procedurally correct manner.

Q:        Are reserve accounts supposed to be kept in separate accounts? In other words, should the roof reserve be in one account, the painting reserve be in another account, and so on. (D.R. via e-mail)

A:        No. There is no requirement in the law prohibiting the “comingling” of reserve funds, and they are most often kept in a single account (but should also be kept within federal insurance limits).

Section 718.111(14) of the Florida Condominium Act does prohibit “comingling” reserve and operating funds. However, for investment purposes only, a multicondominium association may commingle the operating funds of separate condominiums with the reserve funds of separate condominiums.

Q:        Can a candidate running for a homeowners’ association board of directors seek and hold proxies to vote for themselves? (T.M. via e-mail)

A:        Yes. Assuming that the bylaws permit proxy voting in the election of directors (which is prohibited in the condominium context) and absent a limitation on the number of proxies a particular person can hold, there is no prohibition in the law against this.

Most associations that use proxies in elections, however, use a “limited proxy,” so that the person soliciting the proxies would have no discretion on how the votes should be cast.

 

Written by Joe Adams and originally posted on FL Condo HOA Law Blog