|RECALL BOARD OF DIRECTORS? NO EQUAL RIGHTS!|
Opinion By Jan Bergemann
Published October 9, 2008
In 2004, during meetings of the HOA Task Force, the provisions for RECALL OF DIRECTORS in the Florida Condo Act [FS 718.112(2)(j) + (k)] were highly praised and considered effective to eliminate very expensive court battles, as we had seen in homeowners' associations.
After some heated debates the proposal was adopted and the provisions can be found today in FS 720.303(10).
All seemed fine, easy to use and easy to understand, until the Arbitration Section of the DBPR got its fingers on interpreting the statutes, creating its own rules!
The problems started when arbitrators interpreted FS 720.303(10)(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 (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."
The wording "the recall shall be deemed effective" is in my opinion very clear. The board violated the statutes and is removed immediately. PERIOD!
Not so for the arbitrators of the Division. They demand that the Owners Voting For Recall file for arbitration must pay the fees and prove that they did everything according to the book. The recalled board can just sit there and laugh, being rewarded by the Division for violating the laws.
That has caused some ridiculous arbitration cases, like LAKE PLACE CONDOMINIUM ASSOCIATION, INC. It took 171 days to make a ruling, and when the arbitrators leaked the upcoming ruling against the sitting board, the board quickly convened a board meeting and signed a three-year contract with Vanguard Management Group, Inc. -- with a very expensive escape clause. The old board knew full well that the new board wouldn't approve.
All caused by a letter from attorney Steven Mezer, stating that the recall petition was (quote) "defective and deficient,” so no meeting was necessary. It seems everybody ignores the wording of the statutes.
have some other examples where boards plainly ignore being served by
recall petitions according to Florida statutes. Attorneys tell these
board members to just ignore the statutes and go on with business as
usual. Latest examples:
QUAIL HOLLOW CONDOMINIUM
QUAIL HOLLOW CONDOMINIUM
The president was served with the recall petitions by process server on July 29, 2008. The only response from him, besides ignoring the recall statutes: A LETTER TO ALL OWNERS insulting the neighbors!
Despite desperate pleas from the owners -- they found out that their buildings are not insured -- the only responses from the DBPR so far: Demands for more records from the Owners Voting For Recall. Maybe the DBPR folks haven't figured it out yet: Owners Voting For Recall didn’t violate the statutes; the board did.
It's all about buying time. The board violated the recall statutes and now the "new" attorney blames the old attorney -- all at the expense of the unit owners who followed the law. The old trick: Change attorneys to buy time if you have no legal leg to stand on. But in his RESPONDENT'S MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO ORDER REQUIRING ANSWER attorney KEITH H. PARK writes (quote): "This Motion for Enlargement of Time is not being interposed for the purpose of delay or to protract this proceeding, ...." Then what is it for? Creating more legal fees?
And since attorneys realized it works well, that's
what more and more recalled boards are doing. These boards buy lots of
time, but don't really have to do anything but ignore everybody and
everything -- including
But if you are a board member who is recalled by initiative of "fellow" board members, the cards are stacked against you -- Thanks to the DBPR arbitrators! You know the recalls where board members go around collecting recall petitions by telling the owners that they have to charge a special assessment if this "out-of-line" board member isn't recalled?
The arbitrators make it easy to remove a board member who doesn't follow the party line. They just have recall petitions served -- who cares if they are correct, don't hold a recall meeting and have their hired gun (excuse me, ATTORNEY)-- explain that because there was no recall meeting the "recalled" board member is removed immediately. Worst example: JUDGE, JURY AND EXECUTIONER! How to hijack a board with the help of an attorney! It is disgusting that something like that is allowed to happen in Florida -- even Banana Republics would have a PR problem with this kind of conspiracy.
And to add insult to injury, the DBPR arbitrators claim that a recall arbitration filed by these board members, who are removed by "Recall By Ambush," is not really a recall arbitration, protecting these now "former" board members against claim of legal fees in case of an adverse Final Ruling. In normal recall arbitration cases the parties are not liable for any legal and/or attorney's fees. See: PLANTER'S WALK HOMEOWNERS' ASSOCIATION, INC. v. Homeowners Voting For Recall
I was always under the impression that our society was supposed to be built upon EQUAL RIGHTS as a foundation. But according to the DBPR arbitrators, there are no “EQUAL RIGHTS" when it comes to recalling board members. It's one thing if owners want to recall the board -- and another if board members are recalling a board minority using a "Recall By Ambush." Arbitrators -- on their own initiative, not caused by the wording of the law -- are protecting boards being recalled to the detriment of the owners, often causing serious financial harm.
Let's make one thing very clear: The Arbitration Section of the DIVISION has hijacked the statutes, created its own rules -- who cares what the statutes enacted by the legislature say? -- and made a total mess out of pretty good provisions. But, WHAT'S NEW?