How to Recall an HOA’s Board of Directors

Recall an HOA's Board
Homeowners knew something was wrong with the HOA’s new board of directors but what could they do?

How to Recall an HOA’s Board of Directors

In Florida, homeowners who believe that their HOA’s board of directors has acted negligently or improperly can attempt to recall an HOA’s board and replace them with new directors. Fla. Stat. §720.303(10) outlines the steps homeowner’s must take to recall an HOA’s board of directors. This article briefly identifies the relevant provisions and provides explanations of each of them.

“Regardless of any provision to the contrary contained in the governing documents . . . 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.” Fla. Stat. § 720.303(10)(a)(1) (emphasis added). The owner or owners of each unit in a community are entitled to 1 vote. If there is more than one owner to a unit, those owners still only get 1 vote. Consequently, if a community has 166 units, a majority of owners would be 84 units. Therefore, in such a community, with 84 votes the HOA’s board of directors could be recalled.

“Board directors may be recalled by an agreement in writing . . . without a membership meeting.” Fla. Stat. § 720.303(10)(b)(1) (emphasis added). According to the statute, homeowners do not need to hold an official meeting to recall the directors. They can recall an HOA’s board by written agreement. The Florida Department of Business and Professional Regulation (the “DBPR”) has form written recall agreements for this specific purpose.

“When the recall of more than one board director is sought, the written agreement . . . shall provide for a separate vote for each board director sought to be recalled.” Fla. Stat. § 720.303(10)(j). “If the recall occurred by agreement in writing . . . members may vote for replacement directors in the same instrument in accordance with procedural rules adopted by the division . . . .” Fla. Stat. § 720.303(10)(e).

“The agreement in writing . . . 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.” Fla. Stat. § 720.303(10)(b)(5). If homeowners are seeking to recall 3 board members, the recall agreement must choose at least 3 possible replacement directors.

“The agreement in writing . . . shall be served on the association by certified mail . . . .” Fla. Stat. § 720.303(10)(b)(1). “The board shall duly notice and hold a meeting of the board within 5 full business days after receipt of the agreement in writing . . . . At the meeting, the board shall either certify the . . . 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).” Fla. Stat. § 720.303(10)(b)(2) (emphasis added).

Paragraph (d) provides: “If the board determines not to certify the written agreement . . . 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 with the [DBPR] a petition for binding arbitration . . . .” Fla. Stat. § 720.303(10)(d) (emphasis added). Homeowners list a representative who will receive the signed recall agreements and serve them on the board. Once homeowners have obtained enough signatures to form a majority, the recall agreement is send by certified mail to the board. Upon receipt, the board has to hold a meeting within 5 business days.

At the meeting, the board MUST do 1 of 2 options: 1. They certify the written agreement to recall, in which case the recall is immediately effective. The recalled board must then turn over control within 5 business days OR 2. They do not certify the written agreement to recall, in which case they MUST list specific reasons for rejecting any of the written agreements AND file a petition for binding arbitration with the DBPR within 5 business days.

“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.” Fla. Stat. § 720.303(10)(f).

“If the board fails to duly notice and hold the required meeting or fails to file the required petition, the unit owner representative may file a petition . . . challenging the board’s failure to act. The petition must be filed within 60 days after the expiration of the applicable 5-full-business-day period. The review of a petition under this paragraph is limited to the sufficiency of service on the board and the facial validity of the written agreement . . . filed.” Fla. Stat. § 720.303(10)(g). If the board does not hold a meeting within 5 days after receiving the recall agreements, the recall is effective without further action. At that point, if the board does not voluntarily step down, homeowners can file a petition for arbitration with the DBPR.

“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.” Fla. Stat. § 720.303(10)(h). If any of the directors still refuse to step down, homeowners file a petition with the court. The court will issue an order compelling the directors to step down. If they don’t comply, they would be in contempt of court and could be arrested until they comply with the order.

Alternatively, the recalled directors can also file petition for arbitration challenging the validity of the recall. “A board member who has been recalled may file a petition … challenging the validity of the recall. The petition must be filed within 60 days after the recall is deemed certified. The association and the unit owner representative shall be named as respondents.” Fla. Stat. § 720.303(10)(k).

“If the arbitrator certifies the recall as to any director or directors of the board, the recall will be effective upon 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.” Fla. Stat. § 720.303(10)(d).

If homeowners have to go to arbitration, the arbitrator will review the written recall agreements and determine whether or not they comply with the provisions cited here. However, if homeowners have a majority of owners who have signed the recall agreements, using the form drafted by the DBPR, there is NO legal reason they would not prevail in arbitration.

Importantly, homeowners cannot recall an HOA’s board of directors if an election for the board will be held within 60 days OR if less than 60 days has passed since the last election was held. Specifically, “[t]he [DBPR] may not accept for filing a recall petition … 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.” Fla. Stat. § 720.303(10)(l).