HOAs are always run by a group of board members, which can help with fairness in decision-making and improved decision-making power related to management processes. The downside to an HOA board is that sometimes there is a person who has broken the law who is on the board or who has been accused of doing something that requires that the HOA take action to remove them.
Removing or recalling a board member has a lot to do with the way that the bylaws for the HOA are written, and sometimes board members will contest the removal process. This can lead to a need for legal representation for the rest of the board as the person who is being removed tries to fight the removal or recall.
If you are struggling to be certain about removing or recalling a board member from your HOA, this article will shed some more light on the matter.
What is Cause for Removal or A Recall?
As a general rule, there are some actions that are almost always a cause for someone to be removed or recalled from the HOA board. There can be additional causes for this action to be taken, which are written into each unique HOA’s bylaws, but some of these more major offenses are common to all groups.
- Felony theft of funds that belong to the HOA
- Embezzlement of funds that belong to the HOA
- 90 days delinquent in paying their HOA dues
- Altercations of a physical nature with board members or residents of the community
The above actions can also sometimes be cause for immediate removal or recall without needing to complete any legal action or take a vote about the removal. However, this again will depend on the way that the HOA bylaws are written.
Under 720.303(10)((a)1. of the Florida Statutes, members of the board of an HOA will need to be removed via a majority vote of the board of directors. The recall can be without cause, but this can lead to problems with the recalled person if they decide to take legal action for being recalled or removed.
HOAs are always instructed to follow the law when removing or recalling someone from an HOA board to prevent issues that could lead to legal action being taken against them. The guidelines of the HOA will offer the directions that HOA board members need to take when they are removing or recalling someone from the board.
When there are issues with the vote, or the recalled or removed person contests the action that was taken against them, this is when a lawyer is often needed. The process of defending the entity that is the HOA board can be complex, and you will want to be certain that you are not going it alone when someone protests their removal.
Why is a Majority Vote Needed?
Like most governing bodies or clubs, an HOA requires that all major decisions be made via a majority vote. This is to ensure that there is no favoritism or specific antipathy against a board member that stems from a personal dispute with a single person on the board. The voting process also makes the removal of the board member public and allows for commentary and other discussions before the board member is removed or recalled.
When these kinds of decisions are not made properly or are done behind closed doors, this can lead to hard feelings and other kinds of issues that could have been avoided. The better that the board is about following the rules when this kind of action is taken, the more likely it will be that no legal action will ensue. This is the ultimate goal of the public vote, but this can be backed up with the support of a legal team just to ensure that there is no additional trouble after the person is released from their duties on the board.
If you are going to be taking the vote and then sending the notice of the action out via the mail, you will need to be certain that you follow the procedural rules for this kind of notice to the party being removed. There are often specific requirements for notifying the party that has been recalled in this scenario that is unique to your board bylaws. When you violate these bylaws, you might not be able to actually complete the process of removing the person that you are trying to take off the board.
What Kind of Lawyer Works on These Cases?
If you are not sure what kind of lawyer to look for when you have been sued by a board member who was recalled, you need to look for a qualified Florida Real Estate Attorney. HOA issues are usually a specialty of certain lawyers, and you will want to be certain that the person that you hire for the job is familiar with Florida law in relation to HOA rules and bylaws.
The team at Lopez Law Group is familiar with these kinds of court proceedings, and you can even reach out to them before you remove someone from the board to make sure that you are taking action against this person correctly. Being sure that you are following the letter of the law can make all the difference when it comes to engaging in removal or a recall.
There are various legal options that are open to HOAs, depending upon how their bylaws are written, so it is imperative that the HOA board is familiar with the options open to them before they decide to recall or remove one of their members. Consultation with a skilled legal team is important since these kinds of decisions can often lead to strife within the group or legal action being taken against the entire board.
Is Removal of Directors a Different Process?
Most of the process of removing a director of the board from their position should be the same as the process of removing a board member. The only differences often come into play when the director refuses to be removed or will not allow a new person to come onto the board to replace them. This can cause a lot of strife within the board, so there will likely be requirements that are set out in the bylaws to handle this kind of problem. This is one of the most common reasons that an HOA board might need to get legal support for their efforts.
Removing a director can be further complicated by the fact that the director might have documents or other items that they need to return to the board upon their removal. These items are not the property of the director personally, but they can sometimes be withheld from the board if the director is not happy about their removal. An attorney can help to attend to this kind of conflict and make sure that the items that belong to the board are returned as per the HOA bylaws.
How Does Someone Challenge a Recall?
The bylaws will always explain how a board member goes about challenging a petition or vote to remove them. There is often a set process that must be followed by the party who believes that they have been wronged by the recall action. The board member that has been removed might also secure a lawyer to contest the actions that were taken to remove them as unfair or incorrect.
This process is usually governed by Fla. Stat. § 720.303(10)(k). but there can be additional processes or requirements that are added to each set of bylaws as needed. The person who has been recalled technically always has the right to protest the action taken to remove them, but they might not be able to argue successfully that their removal was unlawful if the board acts properly throughout the process.
Removing or Recalling a Board Member Can Lead to Legal Action
If you are part of an HOA board in the state of Florida, you might find yourself required to remove another board member at some time. When this kind of action needs to be taken, it can be advisable to secure legal representation before the person is voted off the board. Being sure that you are taking all the right actions during the removal process is important to avoid legal action being taken against the board for the recall or removal.
Working with a skilled legal team matters, and Lopez Law can offer you the legal representation that you have been looking for when a board member needs to be removed from an HOA. You will be able to secure expert advice and guidance before you vote to recall, and you can also count on the team at Lopez Law to know how to proceed if the person that you have recalled takes legal action to protest being removed. This is a complex process, and you will be glad that you have secured expert legal representation as you navigate the challenges of this kind of action.