Board members are elected by owners to run the association and manage its property and finances. Owners rely on the board to enforce association rules and resolve problems. When a board member loses the confidence of the owners, he or she may be replaced at the annual election of board members. However, some circumstances warrant the immediate removal of a director. In the event that the owners want to remove a director, the Florida Condominium Act provides a procedure for an association’s voting interest to “recall” a director.
Under some circumstances, a board member’s removal may be automatic without a recall. If a board member is convicted of a felony, or charged with felony theft or embezzlement of association funds, he or she cannot continue to serve as a board member. A board member who is more than ninety days delinquent in any monetary obligation to the Association, such as monthly maintenance assessments, is considered to have abandoned his or her board member position, and must be replaced. If membership in the association is a required for all board members, and a member sells his or her unit, the selling owner forfeits his or her position on the board and must be replaced. In the absence of these special circumstances, board members can only be removed by a vote of the owners under the recall provisions of the Florida Condominium Act.
Under the Act, a board member may be recalled and removed from office by a vote or agreement of all the voting interests in the association. In order to recall a board member by a vote, at least ten percent of the voting interests need to call a special meeting and give notice of the meeting. A majority of the voting interests must vote to recall the board member. The board members must duly notice and hold a board meeting within five days thereafter. The board then certifies the recall, and the member in question is recalled immediately and must turn over any and all records of the association in his or her possession within five business days.
If the board member is recalled by written agreement, the agreement or a copy of the agreement must be sent to the association via certified mail or personal service. The board then duly notices and holds a meeting within five days of receipt of the agreement. The board then certifies the recall, and the board member is immediately recalled, and must return any and all records of the association within five days.
What happens if the board fails to certify the recall? The board must file a petition for recall with the Division of Condominiums, Mobile Homes and Timeshares, and an arbitrator may certify the recall, which will become effective when the final order of arbitration is mailed to the association. The board member then has five days to return property belonging to the association.
As Chair of WSH’s Community Association, Club and Resort Group, Partner Joshua D. Krut provides counsel to associations on day-to-day matters, including corporate governance. Josh has extensive experience advising boards on an array of issues. Josh is also a member of our Real Estate Group and Corporate Law Group, and relies on his background in both areas of law in effective representation of associations.
