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Tina
Tina, Lawyer
Category: Real Estate Law
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Experience:  17 years of legal experience including real estate law.
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Florida HOA How do we find out if we still have a board?

Customer Question

Florida HOA
How do we find out if we still have a board?
Board members will not sign for certified mail.
They state that computer has virus and cannot respond to email.
Have been told not to approach them at their home or if we see them in the community.
last annual meeting was feb 2, 2014 at 2 pm not at 7 pm according to 720
Agenda for the annual meeting states under election of directors for 2014 states in part--
Should there not be a quorum of three directors elected, then the current officers will meet privately on the legal matter on how to proceed, but will not continue serving.
Our fees are only $50.00 and we have people who will take over now. Can't see getting a lawyer. Just want the books to set up knew board and continue with HOA duties.
Can you help?
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  Loren replied 9 months ago.

Good morning. I am Loren, a Florida licensed attorney, and I look forward to assisting you today.

Expert:  Loren replied 9 months ago.

Is the corporation still in good standing with the state?

Customer: replied 9 months ago.
As far as I know
Customer: replied 9 months ago.
The HOA is registered with the state. How do I find out if we still have a board. A recall will not work if there is no board or they don't sign for certified mail
Expert:  Loren replied 9 months ago.

Thank you for the additional information.

The board is out of compliance and in breach of their fiduciary duties. The association may, in compliance with statute and bylaws, recall the board even if they will not sign for certified mail. Certified mail only shows that the notice was sent to the address on the card. That is all you need to prove. Rejection does not protect the board from recall because you are in compliance by sending certified notice.

Customer: replied 9 months ago.
our best way to proceed is to do a written recall that will go to arbitration.I was the only one to be nominated at the annual meeting. Because there was not 3 members there was not a vote. Can't one person take over and fill the board within 30 days.
Expert:  Loren replied 9 months ago.

One person may not take over the board because no business may be conducted without a quorum. If no one will serve on the board then you may have to dissolve the association.

Customer: replied 9 months ago.
We have people now that will serve. Will a member's meeting be a quicker and less expense than the recall.
Expert:  Loren replied 9 months ago.

You need to recall the current board first, as they continue to serve until there is a new election.

Customer: replied 9 months ago.
Thanks. We had a meeting yesterday and didn't know the quickest and best way to proceed.
There has been two other recall attempts back in 2005 and older that fail. I was not living here then. From what I understand you need to have a majority of members vote against the board. Correct? So for 177 home that would be 89 members. Can you use proxies on a recall? We have 50-60 rentals and of course snowbirds. Or do we have to mail the recall form for them to sign and return?
Expert:  Loren replied 9 months ago.

Yes, proxy voting is permissible.

Customer: replied 9 months ago.
Even on a written recall?
Expert:  Loren replied 9 months ago.

Yes, there is nothing prohibiting a proxy vote in the statute.

Customer: replied 9 months ago.
How do you fill out the proxy for that? I was told the proxy can only be used at the annual meeting. The form I have states:
at the annual meeting( where and when(date and time))I just need to replace that with :
for the recall as stated in block c
and not put a date anywhere except for their signature ?
Does this sound correct.
Expert:  Loren replied 9 months ago.

Statute:

"...(b)1. Board directors may be recalled by an agreement in writing or by written ballot without a membership meeting. The agreement in writing or the written ballots, 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."

Use the proxy form as a template. Just follow the statute. It can be done by agreement of the members. That is probably the simplest way.

Customer: replied 9 months ago.
I'm still not clear about this. Are you stating that we don't need to do a written recall?
We can just do a proxy to use for a new board. Such as : after we get the proxies back, then we write a letter stating new board members that we vote for using the proxies and send that certified mail to the board?
Expert:  Loren replied 9 months ago.

You can just do it by getting the members to sign an agreement of recall and serving it on the association.

Expert:  Loren replied 9 months ago.

Serve it on the corporate registered agent.

Customer: replied 9 months ago.
An agreement of recall is not the written recall form? And not a proxy? Just a form we devise?
Expert:  Loren replied 9 months ago.

Yes, you can create an agreement, without proxy. Just get all the members to sign.

Expert:  Loren replied 9 months ago.

Which recall form do you have? Can you upload it?

Customer: replied 9 months ago.
It is at : www.myfloridalicense.com/dbpr/lac/documents/recall_agreement_ballot.pdf
Expert:  Loren replied 9 months ago.

The link is not working for me. You can use an agreement of recall signed by the members.

Customer: replied 9 months ago.
I can have proxies reference the agreement so I can get more votes?
Expert:  Loren replied 9 months ago.

No, the agreement must be signed by the members. It is not a vote.

Customer: replied 9 months ago.
How can you do a recall without replacing the board with replacements?I have to step out for a couple of hours, can we pick this up later?
Expert:  Loren replied 9 months ago.

The recall agreement is a written consent by membership to take action. The agreement will contain the names of the replacements.

You can also call a meeting and do the recall with the proxies. Either way will work. Though, it sounds like the current board is not going to dispute the recall.

Customer: replied 9 months ago.
Here is a copy of a written recall agreement. If I understand you correctly, we cannot use proxies using this. Right?
Customer: replied 9 months ago.
If we don't us this and just use a proxy, the the proxy must state: this is for a recall of the board , does it have to offer replacement name or the person assigned the proxy can vote for who they want. And at the meeting we state we want to hold an election?
Customer: replied 9 months ago.
1. Can you send me an electronic pdf of a recall proxy?
2. We have 177 homes how many proxy signatures of the home owners do we need to
Validate the recall.
Customer: replied 9 months ago.
I also need the instructions for number 1 above. More concerned about the dates. Can we take up to 30 days to complete the proxies or is there a different time frame.
Expert:  Loren replied 9 months ago.

1. Use the ballots you have.

2. You need a simple majority but aim for 5%-10%

See the following link for a step by step process:

http://www.myfloridalicense.com/dbpr/lsc/LSCMHHOAprocedures.html

Customer: replied 9 months ago.
I'm interested in a recall proxy form not the written recall form. As I stated we are not interested in the written recall as you stated we could do a proxy recall.In my response dated March 4th 2016 at 2:20 and 2:23; I still don't have a reply from you as you are referencing the written recall form.
Expert:  Loren replied 9 months ago.

I do not have a form for a recall proxy. You would need to retain local counsel to draft it for you.

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