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Removing Officers and Directors Require Different Procedures

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Q: Our homeowners’ association board president has not been responsive. He is also over two months overdue on assessments. Can he be replaced and what are the steps for that process? (V.R., via e-mail)

A: There is a difference between directors and officers. Directors (the “board”) are elected by the owners and can be removed as a director, with or without cause, by a majority of owners. Conversely the officers (president, vice president, secretary, treasurer, and assistant officers) are appointed by, and can usually only be removed from office by, the board of directors. Some bylaws require that some or all officers must be directors, some don’t.

Section 720.306(9)(b) of the Florida Homeowners’ Association Act states that a person serving as a board member who becomes more than 90 days delinquent in the payment of any fee, fine, or other monetary obligation to the association shall be deemed to have abandoned his or her seat on the board, creating a vacancy on the board to be filled according to law.

If your owners wish to recall the president as a board member, the procedures are set forth in Section 720.303(10) of the Florida Homeowners’ Association Act, which you should be able to easily locate online. If your bylaws require the president to be a director, the recall would also serve to remove him from that office. If not, I suspect he would resign or be replaced with a new president by the remaining members of the board.

Q: Our cooperative bylaws state that all board meetings are open to owners, but we are unclear on how many board members can meet at a time without violating the Florida sunshine laws. (J.S., via e-mail)

A: Although the word “sunshine” is more of an industry slang term, the answer is found at Section 719.106(1)(c) of the Florida Cooperative Act. This law states that “meetings of the board of administration at which a quorum of the members is present shall be open to all unit owners.” This means that the “sunshine” laws apply when a quorum of the board is gathered to conduct association business.

This applies to any “real time” gathering of the board, whether in person, by telephone, video conference, or some combination thereof. The concept of conducting business is applied broadly, and does not require that a vote be taken for a gathering of a quorum of the board to still constitute a “meeting.”

Q: My homeowners’ association is about to hold an election. Several people who were involuntarily recalled last year have said they are running again. Can they run again? (J.R., via e-mail)

A: Yes. Former directors previously removed from the board by recall are eligible to run for the board in the future.

Section 720.306(9) of the Florida Homeowners’ Association Act that all members are eligible to serve on, and may nominate themselves as candidates for, the board. The only exceptions are individuals who are delinquent in the payment of any monetary obligation to the association and individuals who have been convicted of a felony and have not had their civil rights restored for at least 5 years.

Not surprisingly, while these individuals can run in the future, the law also states that when the remaining directors fill a vacancy caused by a recall, the recalled director is not eligible to fill that seat.

Q: My condominium association has revenues over $500,000.00 per year, but hasn’t had an audit in years. The owners keep voting not to have one. Isn’t an audit required every so many years? (A.L., via e-mail)

A: Section 718.111(13) of the Florida Condominium Act requires associations with annual revenues in excess of $500,000.00 to obtain a yearly audit. The statute also provides that a majority of the unit owners can vote to waive the audit and authorize a lower level financial report, such as a review, a compilation, or a cash statement of receipts and expenditures.

For a relatively short period of time, the Florida Condominium Act stated that an association could not waive its statutorily required financial reporting requirement for more than 3 consecutive years. However, that provision has been repealed.

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