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Board Can Fill Vacancies

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Q: At our annual HOA meeting, the persons who were voted in by the board for the treasurer and secretary resigned after accepting the position that very night. Can the board fill the vacancies without an election? Is there a limited timeframe to fill the names of these vacant positions? I am also thinking we will have to have an agenda and send out a meeting notice. (B.N., via e-mail)

A: First, it is important to distinguish between director vacancies and officer vacancies. In most (but not all) cases, the officers are also directors. The general rule of thumb is that homeowners elect the board and the board appoints its officers. So, the board would have the authority to appoint a new treasurer and secretary absent an unusual provision in your bylaws.

As to director vacancies, unless your association’s governing documents provide otherwise, yes, a board vacancy resulting from a resignation may be filled by the affirmative vote of the majority of the remaining directors, even though the remaining directors constitute less than a quorum, or by a sole remaining director. The appointed member would fill the position for the remainder of the unexpired term, unless otherwise provided in the documents.

Q: At the annual meeting for my condominium association, there was a tie for the last seat on the board. We were unsure what to do and it was suggested to flip a coin to decide. Was that correct? (R.C., via e-mail)

A: The proper procedure would have been to hold a run-off election to decide who should get the seat.

Rule 61B-23.0021(10)(c) of the Florida Administrative Code states that, unless the bylaws for the association provide otherwise, the association must hold a run-off election to decide who gets the seat on the board. The rule requires that the association send out a notice of the run-off election within 7 days of the date of the initial election where the tie occurred, and the run-off must be held within 21, but no more than 30, days from the original election.

The bylaws could theoretically provide for the flip of a coin to decide a tie. If they do not, then a run-off election would be required. However, since the law also permits candidates to withdraw from an election (though it is supposed to be in writing), I guess it could be argued that if both parties agreed to the coin toss, the loser effectively agreed to withdraw.

Q: I follow your column and am particularly interested in legislative proposals. I have not been able to find out whether HB 155 was passed in 2019 or not. If not, is there any other provision that prevents a majority of non-residents from controlling an association whereby a high majority of the residents are all short-term residents? (J.B., via e-mail)

A: In general, the HB 155 would have amended Section 720.303 of the Florida Homeowners’ Association Act to require the voting interests of a homeowner’s association to physically reside in the community in order to recall a board director, however, HB 155 did not pass. Legislation can generally be tracked at https://www.myfloridahouse.gov/Sections/Bills.

Section 720.306(9)(a) of the Florida Homeowners’ Association Act provides that “all members of the association are eligible to serve on the board of directors.” There are some disqualifications in the statute such as certain felony histories and financial defaults by candidates, but otherwise an association cannot restrict any owner from running for the board and could not, for example, impose residency requirements for directors.

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