“Community Association Q&A: Can An HOA Director Be Recalled?,” Naples Daily News

“Community Association Q&A: Can An HOA Director Be Recalled?,” Naples Daily News

hand picking up a red wooden figure, from a row of wooden figurinesQ: One of the directors on the board at my homeowners’ association needs to be removed. He is very belligerent to his fellow directors and other owners. He also rarely attends meetings and never contributes. What needs to happen under Florida law to get him off the board? C.S.

A: Section 720.303(10) of the Florida Homeowners Association Act states that the recall of a director requires the consent of a majority of the entire voting interests. There is usually one “voting interest” per home or lot.

Owner recall votes can be obtained via written agreement/petition, or by conducting a vote at a membership meeting. There is no requirement to establish or prove “cause” as the basis for a recall. Details regarding the recall process and applicable procedures are outlined within the statute, which is readily available on-line.

Q: My condominium association adopted a large special assessment in 2019 to pay for replacement of the roofs. Under our condominium documents, the owners must approve any special assessments, which did happen. Approximately $50,000 in surplus funds was left over from this special assessment after the roofing project was completed last year.

At a recent meeting the board announced that they are going to spend this surplus money on upgrading the landscaping. Don’t the surplus funds left over from the special assessment have to be returned to the owners? A.E.

A: Section 718.116(10) of the Florida Condominium Act states that the funds collected pursuant to a special assessment shall be used only for the specific purpose or purposes identified in the notice sent to the owners. Further, upon completion of such specific purpose or purposes, any excess funds will be considered common surplus, and may, at the discretion of the board, either be returned to the unit owners or applied as a credit toward future assessments.

Based on the foregoing, it is contrary to Florida law for the board at your condominium association to spend the surplus funds on upgraded landscaping. Your board must return the $50,000 in surplus funds to the owners via direct refund or via a credit towards future assessments.

Q: I live in a cooperative and serve on the board. Our manager has been doing a poor job (e.g. missing meetings, failing to respond to e-mails, etc.). The board wants to terminate her, which I support. What do we need to do? P.D.

A: The first step is to find out if there is a written employment agreement with the manager. An employment agreement should address the termination process and procedure, including identifying how much advance written notice must be provided prior to the termination becoming effective. Many employment contracts contain different procedures when the termination is pursued “for cause.”

The board needs to closely review the terms of any employment agreement and also contact the association attorney for further assistance to ensure the termination is effective and legally binding. Under Florida law the board can discuss personnel matters, which would include whether to fire an employee, during a closed board meeting.

If there is no employment agreement it is important to note that Florida is an “at-will” state, which means that in most cases, Florida firing laws permit an employer to fire an employee without a contract at any time with or without cause.

To read the original Naples Daily News article, please click here.

David Muller is a Board-Certified Attorney in Condominium and Planned Development Law with Becker & Poliakoff, P.A. in Naples. Send questions to dmuller@beckerlawyers.com.