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By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
Published
August 6, 2013
H
73 -- the community association bill sponsored by Representative
George Moraitis -- contained some anti-owner provisions that make election
challenges and recall more difficult. Most likely this "anti-owner"
language was cooked up by James Earl, the arbitration chief of the
Division of Florida Condominiums, Timeshares, and Mobile Homes. The
DBPR, officially named as the sponsor of these two provisions, refused to
comment on the original author. James Earl has a reputation of
"making up" laws and "reading things" between the
lines that are just not there.
Remember
his ruling claiming that a recall dispute between board and owners is a
recall dispute (no legal fees due to any party involved), but if a board
member is being recalled (using the recall procedures as described in the
statutes) and files for arbitration this arbitration is in reality an
election dispute and the prevailing party is entitled to legal fees. I
guess some people need reality checks! I'm still not sure what gave Earl
that idea?
The
new provisions demand that any
election challenge must be commenced within 60 days after the election
results are announced. Considering that there is no tool available in
Florida to force boards to hand over the election documents within 60
days -- not even courts can work miracles, owners will be hard
pressed to file an election challenge within 60 days, if the board, like
many boards do, announce their -- often imaginary -- results and
then refuse to honor a record request asking for the election documents.
It's pretty obvious that it's pretty difficult to file for election
arbitration if you don't have the documentation.
But,
since the arbitrators were asking for it, let them do the work of getting
the needed records. If you are pretty sure that mistakes were made at the
election and the announced results "make no sense", just
file for arbitration and say in your filing that you can't give details
for your challenge yet since the board refused to honor your record
request, thereby violating Florida statutes. Just add your green
"certified letter" receipt from the post office to your filing.
If you then get finally all the election documents you can still decide if
you want to continue with the challenge -- or withdraw. But you sure
followed the wording of the new law: You commenced the election challenge
within 60 days! Not your fault that your board violated the Florida
statutes!
The
changes to the recall provisions are as well anti-owner requirements. One
of the changes requires owners to wait for 60
days after the election results were announced before serving
a recall petition. That kills the idea of waiting for the results of the
election (especially in communities where the board has a history of
cheating with elections) and then start the recall. But that doesn't mean
that owners can't collect the necessary petitions before the 60 days are
up. You can have the process server serve the board 60 days after the
election -- making sure that you are within the time-line.
It
has always been useless trying to recall the board less than 120 days
before the next election. Remember: A new election makes any recall effort
anyway moot -- meaning: Don't waste your efforts!
But
the new language adds even more paperwork and gives recalled boards more
time to do more damage. Instead of the old
language making the recall effective immediately if the
board fails to duly notice and hold a board meeting within 5 full business
days after service of an agreement in writing, the owners voting for
recall now have to file for arbitration -- more paperwork and more
unnecessary cost. This requirement will be
keeping the recalled board in office -- and power -- for as long as their
attorney is able to drag out the arbitration decision.
Sometimes
you wonder what goes on in the minds of our legislators and some of the
folks in Tallahassee. The prior language regarding election challenges and
board recalls worked just fine for many, many years. In my opinion there
is no need to change language that worked just fine. But certain people
always fight to create new language to confuse the owners, making things
more complicated and keeping board dictators in power!
This
language added to the statutes by House Bill 73 is just more nonsense
added to the detriment of the owners. We all know that the system called
"community associations" is difficult for owners to comprehend
in the first place, but instead of making the statutes easier to
understand and to enforce, certain folks in Tallahassee work hard to
complicate matters even more.
These
two provisions deserve the grade F!
FS 718.112(d)4.c.
Any challenge to the election process must be commenced within 60 days after the election results are announced.
The same language was as well added to: [FS 719.106(1)(d)1.a.]
and [FS720.306(9)(a)] |
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FS 718.112(j) Recall of board members.—Subject to s. 718.301, any member of
the board of administration may be recalled and removed from office with or without cause by the vote or agreement in writing by a majority of all
the voting interests. A special meeting of the unit owners to recall a member or members of the board of administration may be called by 10
percent of the voting interests giving notice of the meeting as required for a meeting of unit owners, and the notice shall state the purpose of the
meeting. Electronic transmission may not be used as a method of giving notice of a meeting called in whole or in part for this purpose.
1. If the recall is approved by a majority of all voting interests by a vote at a meeting, the recall will be effective as provided in this paragraph. The
board shall duly notice and hold a board meeting within 5 full business days after of the adjournment of the unit owner meeting to recall one or
more board members. At the meeting, the board shall either certify the recall, in which case such member or members 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
shall proceed as set forth in subparagraph 3.
2. If the proposed recall is by an agreement in writing by a majority of all voting interests, the agreement in writing or a copy thereof shall be
served on the association by certified mail or by personal service in the manner authorized by chapter 48 and the Florida Rules of Civil
Procedure. The board of administration 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 member or members of the board, in which
case such member or members 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 subparagraph 3.
3. If the board determines not to certify the written agreement to recall a member or members 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 division a petition for arbitration pursuant to the
procedures in s. 718.1255. For the purposes of this section, the unit owners who voted at the meeting or who executed the agreement in writing
shall constitute one party under the petition for arbitration. If the arbitrator certifies the recall as to any member or members of the board, the
recall will be effective upon mailing of the final order of arbitration to the association. If the association fails to comply with the order of the
arbitrator, the division may take action pursuant to s. 718.501. Any member or members 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.
4. 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 unit owner recall meeting, the recall shall be deemed effective and the board members so recalled
shall immediately turn over to the board any and all records and property of the association.
5. 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 pursuant to s. 718.1255 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 subparagraph is limited to the sufficiency of service on the board and the
facial validity of the written agreement or ballots filed.
6. If a vacancy occurs on the board as a result of a recall or removal and less than a majority of the board members are removed, the vacancy
may be filled by the affirmative vote of a majority of the remaining directors, notwithstanding any provision to the contrary contained in this
subsection. If vacancies occur on the board as a result of a recall and a majority or more of the board members are removed, the vacancies shall
be filled in accordance with procedural rules to be adopted by the division, which rules need not be consistent with this subsection. The rules
must provide procedures governing the conduct of the recall election as well as the operation of the association during the period after a recall
but before prior to the recall election.
7. A board member who has been recalled may file a petition pursuant to s. 718.1255 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 the respondents.
8. The division may not accept for filing a recall petition, whether filed pursuant to subparagraph 1., subparagraph 2., subparagraph 5., or
subparagraph 7. and regardless of whether the recall was certified, 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 elapsed since the election of the board member sought to be recalled.
The
same changes were as well made to:
[FS719.106(f) -
FS719.301] and [FS720.303(10) -- FS 720.307] |
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Old
Language: FS 720.303(10)(f) (f) 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. |
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