Owners of a Florida condominium, cooperative or homeowners association may remove any director or the entire board, with or without cause, by either of two methods: a written agreement signed by a majority of all voting interests, or a majority vote at a special meeting called by at least 10 percent of the voting interests. Once the board receives the written agreement or the meeting's result, it has five full business days to hold a noticed board meeting on the recall. What the board must do at that meeting, and who bears the burden of going to arbitration afterwards, differs between the condominium statute and the HOA statute, and the difference is frequently misstated. Most recall fights are won or lost on procedure.
Who may be recalled
Any director elected by the owners may be recalled by the owners. Directors appointed by the developer during developer control are not subject to owner recall, and the recall statutes do not remove officers from their offices as such (the board elects officers; recalling a director who is president removes the director, and the board then elects a new president). The governing documents may not make recall harder than the statute does.
Method one: the written agreement
Owners may recall directors by a written agreement, on the form the Division prescribes for condominiums, signed by owners holding a majority of all voting interests in the association (not a majority of those voting). Each signature must identify the unit, the signer's authority to vote for it (voting certificates matter here), the directors to be recalled, and, where fewer than a majority of the board is being recalled, may designate replacement candidates. The agreement is served on the board by certified mail or personal delivery.
Because the written agreement is gathered outside a meeting, it is the method most often defective: unsigned pages, owners who signed twice, signers who are not the designated voter for the unit, and agreements served on the manager rather than the board. Boards should review a written agreement carefully with counsel before the five-business-day meeting — in a condominium to determine facial validity, in an HOA to decide whether to certify — but they may not use the review to run out the clock.
Method two: the recall meeting
Alternatively, owners holding at least 10 percent of the voting interests may call a special meeting of the members to recall directors. The meeting requires the notice the statute and bylaws prescribe for owner meetings, the notice must state its purpose, and the recall of each director is decided by a majority of the votes cast by the voting interests present in person or by proxy (limited proxies in a condominium). If replacement directors are to be elected at the same meeting, the notice must say so and the election must follow the applicable rules.
The board's five business days
Within five full business days after receiving the written agreement or the adjournment of the recall meeting, the board must hold a duly noticed board meeting (posted notice at least 48 hours in advance) on the recall. From that point the two statutes diverge, and boards and owners routinely apply the wrong one.
Condominiums: facial validity, not certification
Section 718.112(2)(l) does not use the words "certify" or "certification" anywhere. Under subparagraphs 1. and 2., a recall approved at a meeting or by written agreement is effective "provided that the recall is facially valid." The board's meeting is the occasion on which the board determines facial validity; it is not a ratification the recall requires in order to take effect.
If the board fails to duly notice and hold the meeting, or at the conclusion of the meeting determines that the recall is not facially valid, the burden of going forward shifts to the owners, not to the association. Under subparagraph 4., the unit owner representative may file a petition or court action under section 718.1255, and it "must be filed within 60 days after the expiration of the applicable 5-full-business-day period." Review in that proceeding is limited to the sufficiency of service on the board and the facial validity of the recall.
In our view this is the single most misunderstood feature of condominium recall practice. There is no condominium board duty to petition for arbitration within five days of declining a recall. A board that believes a recall is facially defective says so at the meeting and minutes its reasons; the clock then runs against the owners.
HOAs: certification, and a board filing duty
Section 720.303(10) works the other way. It does turn on certification, and paragraph (10)(d) provides that if the board determines not to certify the written agreement or ballots, or does not certify a recall voted at a meeting, "the board shall, within 5 full business days after the meeting, file an action with a court of competent jurisdiction or file with the department a petition for binding arbitration" under the procedures in sections 718.112(2)(l) and 718.1255. The members who voted or executed the agreement constitute one party. If the arbitrator or court certifies the recall, it is effective on the final order.
So the five-business-day filing duty that is often attributed to condominium boards is in fact the HOA rule, and the sixty-day owner-filed challenge is the condominium rule. Note also that section 720.303(10)(d) vests HOA recall arbitration in the department, not the division.
In either setting, a board that simply ignores a recall gains nothing. Directors who are the subject of the recall should not vote on whether to certify or contest their own recall.
After the recall takes effect
- Records and property. A recalled director must turn over all association records and property in his or her possession within the statutory period — ten full business days in a condominium, and five full business days after the effective date of the recall in an HOA under § 720.303(10)(d).
- Vacancies. If fewer than a majority of the directors were recalled, the remaining directors fill the vacancies by appointment, unless the recall agreement or meeting elected replacements. If a majority or more were recalled, the vacancies are filled by the replacement candidates named in the recall agreement or elected at the recall meeting; if none were, an election must be held under the statutory election procedures.
- Officers. The reconstituted board elects officers at its next meeting.
- Minutes and notice. The board's determination, the vacancies and the appointments should be minuted and communicated to owners.
Recall arbitration
Recall disputes are excluded from presuit mediation. Section 718.1255(5) provides that election and recall disputes "are not eligible for mediation and such disputes must be arbitrated by the division or filed in a court of competent jurisdiction," and section 718.1255(6) requires that arbitration petitions challenging the legality of the election of a director be handled on an expedited basis in the manner provided by the division's rules for recall arbitration disputes. Section 720.311(1) routes HOA election and recall disputes to the same procedures, "in accordance with the provisions of ss. 718.112(2)(l) and 718.1255."
The condominium arbitration program has detailed rules and forms in Chapter 61B-23 of the Florida Administrative Code. Review of a recall is narrow: the sufficiency of service on the board and the facial validity of the recall. The prevailing party may recover attorney's fees and costs, which is why a board should not contest a facially valid recall for tactical reasons.
Advice for boards facing a recall
- Treat the five-business-day period for the board meeting as absolute; schedule the meeting the day the agreement arrives.
- Have counsel review the agreement or meeting record for genuine defects, using the roster and voting certificates.
- Accept a recall that is facially valid. A board that spends association money defending its own seats against a valid recall will lose and pay the fee award.
- Know which statute you are under. In an HOA, a board that declines to certify must itself file a court action or a petition with the department within five full business days after the meeting; missing that window is the board's error. In a condominium, the board has no such filing duty — it records its facial-validity determination and the owners have sixty days to bring the challenge.
- Whichever applies, adopt a resolution stating the specific defects relied on and minute it. A determination the minutes do not record is difficult to defend later.
- Do not interfere with the owners' effort to gather signatures or hold the meeting; retaliation is the surest way to lose.
Advice for owners organizing a recall
Use the Division's forms in a condominium, confirm each signer is the designated voter for the unit, keep a signature log, serve the agreement on the board by certified mail with a copy to the manager, and expect the board to scrutinize every page. Where a recall meeting is used, comply strictly with the notice requirements. The organizers should also have replacement candidates ready and eligible.
Frequently Asked Questions About Board Recalls
Do owners need a reason to recall a director?
No. Directors may be recalled with or without cause by the required vote or written agreement.
How many signatures are needed for a written recall agreement?
A majority of all voting interests in the association, not a majority of those who respond. In a 100-unit association that is 51 units, each represented by its designated voter.
What happens if the board ignores a recall agreement?
It depends on the statute. In a condominium, § 718.112(2)(l)3. treats a recall as effective where the board fails to duly notice and hold the meeting and the recall is facially valid; the recalled member must then turn over records and property. If instead the board holds the meeting and finds the recall not facially valid, the unit owner representative has sixty days to file a petition or court action. In an HOA, a board that declines to certify and then fails to file within five full business days has missed its own deadline under § 720.303(10)(d), and the directors face fee exposure.
Can the recalled directors run again?
Yes, if otherwise eligible. Recall does not disqualify a director from future elections, although the governing documents may not be amended to make recall more difficult.
Who fills the vacancies?
If fewer than a majority of the board was recalled, the remaining directors appoint replacements unless the recall documents elected them. If a majority or more was recalled, the replacements named in the recall agreement or elected at the recall meeting take office; otherwise an election is required.
How long does recall arbitration take?
Recall arbitrations are handled on an expedited basis under § 718.1255(6) and are often decided within weeks of the petition. Do not assume the directors stay in office in the meantime. The condominium statute does not say so; under § 718.112(2)(l)3. a facially valid recall is effective, and the challenge that follows is the owners' 60-day petition. In an HOA, § 720.303(10)(d) provides that where the board contests the recall it becomes effective on the final order of the court or arbitration.
Contact Hamilton Mikes
Hamilton Mikes advises boards receiving recall petitions and owners organizing them, and represents associations in recall arbitration throughout Southwest Florida. Call 239-594-7227 or visit our Corporate Governance page.
Statutes and authorities referenced
- § 718.112(2)(l), Fla. Stat. (recall of condominium directors; facial validity; 5-full-business-day board meeting)
- § 718.112(2)(l)4., Fla. Stat. (unit owner representative may file a petition or court action within 60 days after the 5-full-business-day period expires)
- § 719.106(1)(f), Fla. Stat. (recall of cooperative directors)
- § 720.303(10), Fla. Stat. (recall of HOA directors)
- § 720.303(10)(d), Fla. Stat. (HOA board that declines to certify must file a court action or a petition with the department within 5 full business days after the meeting)
- § 718.1255(5), Fla. Stat. (election and recall disputes are not eligible for mediation and must be arbitrated by the division or filed in court)
- § 718.1255(6) and § 720.311(1), Fla. Stat. (expedited handling; HOA election and recall disputes follow ss. 718.112(2)(l) and 718.1255)
- Fla. Admin. Code ch. 61B-23 (condominium recall rules and forms)