Monday, June 10, 2013

What to do when a board member resigns?

Be around an association long enough and you will at some point face the resignation of a board member.  Board members resign for reasons ranging from the innocent (like selling a unit or lack of time to devote to the association) to the contentious (a heated argument amongst directors leads to a resignation). Click though to read how and when to fill the vacancy of an officer or director of an association...













First, Florida Statutes use the term board of administration and board of directors interchangeably. So keep this in mind when reviewing the statutes.  When there's a vacancy on the board (by reason other than recall, this is covered in a whole other section) the board has the authority to vote to appoint a new director.  Whether there's multiple candidates for the open board seat or just one, the board can select the new director by majority vote. The position is then filled for the remainder of the term. Therefore, the position may not automatically be up for election at the next annual meeting if the association governing documents provide for director terms greater than one year.  

Next, what if the director was an officer (President, VP, etc.) of the board? Officer positions are generally not selected by the membership of the association. Instead, officer are selected by a majority of the directors.  if for example, the Secretary of the board resigns, at the next meeting the directors can vote on an entirely new set of officers or simply fill the Secretary role.

It's good practice to fill a director vacancy as soon as possible but generally a director resigning does not warrant an emergency meeting of the board. Like usual, check your individual association governing documents to make sure your association does not have specific rules regarding these matters.      








picking officers

filling the vacant - general election, in the interim  

52 comments:

  1. What happens when there is a split board at a condominium association and after 30+ years there is finally enough pressure on the old board members where they finally reason. For example a 5 member board and the 3 former board members resign...now only the 2 new board members are left. How does the board obtain a quorum?

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  2. it can't at first. A quorum is 1/2 plus 1 of the entire board no matter how many seats are vacant. The board needs to appoint 3 other people to fill the seats. At a minimum it needs to appoint one other person so those 3 can make a quorum.

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    1. Hi, is there a specific section in the state statute that handles an HOA board being left without a quorum because 3 of the 5 BODs resigned?
      Thanks!

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    2. Hi Brandon, if it is a 7 member board, with 2 vacancies, and the unit owners are seeking to recall one member, what can be done if 2 members (including 1 being recalled) of remaining 5 are thwarting efforts to hold Special Meeting? Can meeting be call by 3 and fill the two vacancies?

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  3. Two of our board memebers verbally resigned at a board meeting several months ago. Neither submitted, nor will they submit, a written notice of resignation. Does the law allow for automatic termination after missing X number of board meetings? Thanks.

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    1. There's nothing in the statutes that requires attendance for a director at meetings. Sometimes there is language regarding that in the association's governing documents but it's not common. Also, you don't written notice of resignation. It's better but not required. Since they made their intentions clear at the board meeting, I would accept their resignations via the minutes of the board meeting. At the next board meeting, the remaining board can fill the vacancies. Good luck.

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    2. Our board is trying to pass an amendment to our documents that states any Board member who misses three meetings in one year is considered to have resigned. Is it legal to do this?

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    3. I think if they actually amended the Declaration or Bylaws to include that provision it would likely be ok.

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  4. Regarding selective enforcement for HOA's

    Question: As a President of an HOA, can an HOA board create an amendment to allows for temporary waivers of rules.

    Example: Rule: No fences
    Violation: a temporarily disable neighbor puts up $3 wire 1 ft high fence near step to keep small dog near step, while she cant walk.
    What seems trivial has blown into - lets evict the woman for violations in fear of selective enforcement law suit.

    Can an amendment like below, which allows for temp waivers be used or does it create more trouble than worth.
    Thanks


    1. That a temporary waiver may be granted on a rule violation either with or without prior notification from the violating owner, as in the case where the owner may or may not have been aware that they were possibly violating an existing rule. Or where the owner requested permission to violate an existing rule for a temporary period.

    2. That the acting board, by majority vote, may grant a temporary (up to 6 months max) waiver on a case by case basis to any rule.

    3. That the violation may not be permanent, as in demolition, painting or permanent structure change.

    4. That this board voting, either by consensus email or meeting, on a waiver should occur as soon as possible after the identification of the violation.

    5. And that anytime a temporary waiver is granted or denied that a letter/email will be sent to each and every owner to notify them of the condition of the temporary waiver, the circumstances leading to the temporary waiver, the length of time for the allowance of the temporary waiver, and the time of anticipated return to conformance to the rule.

    6. And that any temporary waiver does not set precedence for any further violation of the rule.

    7. And that anytime a temporary waiver is granted or denied, that any owner, who still has further concerns or disagreement, must petition the board and must personally solicit the approval or denial of the entire community to either revoke the waiver or allow the waiver. The onus is on the dissenter.

    8. Upon the end of the temporary period as requested by the violator or required by the waiver, that the board review the temporary waiver and ensure that situation is returned to compliance to the rule.

    9. That the review of the rules and regulation become part of the annual owners meeting.

    10. That this amendment be voted on by all owners, majority rule.

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    1. thanks for the question. This is interesting and requires more discussion. I encourage you to reach out to your association attorney or you can contact me via the contact form on the side of the page.

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  5. Entire board has been recalled by the unit owners. The unit owners collected 60% of the votes in favor of the recall. Two days later the president and another board member resigns. The board immediately adds two new members. Do the unit owners have to do another recall or the original recall will stand to remove the current board?

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    1. There's a lot to this question and variables which would need to be examined. I suggest you reach out to your attorney or contact me at BBurg@HSMcLaw.com and we can discuss it there.

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  6. Can a director rescind their resignation if they have not been replaced by a new board member?

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  7. Can a board director rescind their resignation if a new board member has not replaced them?

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  8. Interesting question, if they say their resignation is effective immediately then i would say no. If they say that I'm resigning effective next month, but they rescind the resignation the following week, then I think that would be fine and they would still be on the board.

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  9. The term for the board members ended with no new board elected - this is confirmed in writing by the Management Company. Also the management company also gave 30 day notice which is effective end of this month.

    Does FL Law permit the unit owners of the community hold an emergency meeting /election (48 hours notice to the community) to elect a temporary board to take action for the community and retain a new management company..etc. We would need at least 3 members and we can gather at least 20-30% of unit owners quickly (ie locally). Some live out of state.

    It would seem that we have to post 48 hours under 718.112 (5) (c) Adequate notice of all meetings, which notice shall specifically incorporate an identification of agenda items, shall be posted conspicuously on the condominium property at least 48 continuous hours preceding the meeting except in an emergency and then press forward.

    Thank you, RM 2/15/16

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    1. There's more to this than I can answer on here. Feel free to reach out via the Contact Form on the right side of the page.

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  10. A board member (director) has spouse attend meeting. They give their spouse a proxy but also state they retire from the board that same day as the meeting. Do the proxies votes count? Does a new meeting need to be scheduled?

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    1. Board members cannot vote by proxy 718.111(1)(b).

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  12. Here's a fun scenario: There is an entirely new BoD coming in, but it has to be 'registered' (not sure the right term) with the state and there has to be an annual meeting in order for them to be confirmed as the BoD. In the meantime, only 2 members remain, and want to resign. Is it legal for the current BoD to assign their duties to the new BoD? Or...should the old BoD attempt to appoint the new BoD, then resign?

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    1. I need more information to be able to answer this question. Feel free to reach out to me via the contact form on the right side of the page.

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  13. Our Board appointed three, one for an empty spot and 2 additional BOD to make it 5 members. Now one of the old BOD resign and she was the VP. We will have our elections in June. That person that resign still had 2 years. She was voted in last year. Can the Board appointed one of the 3 appointed to take over her turn? Therefore only 2 of the three would have to run and one person added new from the membership.

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  14. I have been the secretary of our HOA board for 5 years. Over those 5 years I created many documents on my personal laptop to help me in my job. I recently resigned due to a conflict with several board members. I have received an email from the chairman of the board requesting that I turn over all documents on my laptop that pertain to the HOA. In 720.303 10 Recall of Directors (b) 2. it says to turn over the "property of the association". Am I right in saying that the documents on my laptop are not the property of the association?

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    1. That's an interesting question. Obviously you'll need to turn over all the meeting minutes, agendas, etc. But it seems like you're talking about draft forms that you created. I haven't seen a case or even any discussion on that issue. I'm leaning towards saying that they would not be part of the association's records. This sounds similar to intellectual property and copyrights. Just because you're an officer or director of the company, the materials that you create belong to you unless there's an agreement to the contrary. I'm not saying that i'm correct or even confident but there's certainly an argument there. Good luck.

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  15. Our Treasurer resigned leaving just the President and the VP. Can they fill the vacancy with anyone they both agree upon or does a new board member need to be elected by a majority vote of homeowners?

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    1. Check your bylaws just in case there's something specific in there, but generally the directors can appoint somebody to fill the position.

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  16. This deals with an HOA for a non-condo community.

    We have a situation where the Board has been using a sandwich board at the entrance to notify homeowners of meetings. However, at a meeting on October 20th we were made aware of a meeting that was held on October 11th.

    After the October 20th meeting ended, I sent an email to the Board asking them about the October 11th meeting, and where notification of that meeting was posted.

    The response that I received from the President of the Board was that the letters for the sandwich board weren't available, so he posted the notification at the pool cabana.

    To the best of my knowledge, the Board has set a precedent by posting notifications on the sandwich board, and the posting of the notification at the pool cabana doesn't meet the requirements of a "conspicuous" spot.

    Based on this, am I correct in stating that the majority of homeowners were not made aware of the meeting, and therefore legal steps could be taken to make the meeting void?

    Rick



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    1. It's shady at best. If there was a major decision made at the meeting and that particular meeting notice was posted at a different location than where it's normally posted, I'd be upset as an owner. The problem is if they re-noticed the meeting properly do you think the outcome of the decision would be any different?

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  17. president resigns , there is no vp. there are only two other officers. how is a new president
    chosen?? This is florida........thanks, Peter......sunpeter12211@gmail.com

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    1. generally the other two directors would elect the president.

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  18. In a Board of Directors of three, the President resigned. The two members tried to choose one between 6 candidates but didn't agree in none of them.
    What is the next step: regular elections to fill the vacancy or It is true that the condominium can get a Receiver?

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    1. If they can't agree on the president, then I assume they wont agree on filling the vacancy. In such event, I would have an election for the vacancy and then they could select the new president with the full board. I don't see a receiver being necessary.

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  19. Three days before the end of the year two of our board members resigned. One of the members had another year to serve and one was up for vote. Can the remaining board resend the resignation from the member who was up for vote and fill the other persons spot ? Even if there's is still vacant?

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  20. fl. hoa association- 5 board members, 2 resign (sec/vp). Our bylaws state remaining can appoint new directors. Do we have to since we still have a quarum of 3?

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  21. Our by Laws state we are to have 13 board of directors. All but 3 resigned. The By Laws also state a quorum at any board meeting is 1 more than half. Can the 3 remaining board member conduct a legal meeting?

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    1. If that's the language then arguably if you have all three to have a quorum (as opposed to two). Regardless, if all three are at the meeting, you can have a meeting to appoint more board members.

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  22. My partner was forced to resign under the threat of the board pursuing legal action against him. he resigned and has changed his mind. Is his resignation still binding under florida statutes?

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  23. We had a Board member resign unexpectedly. The Board member refuses to return the building Master and other keys as requested and has indicated she will return them "when she is next in Florida". Is there a statue or stipulation (none to be found in our documents or Bylaws) that dictate course of action and/or protocol?

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    1. Fla. Stat. 718.111(12)(f) states that "An outgoing board or committee member must relinquish all official records and property of the association in his or her possession or under his or her control to the incoming board within 5 days after the election." File a complaint with DBPR if they don't turn over the records immediately. I would consider keys to be records. I hope that helps.

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  25. Hi Brandon,

    Can a sitting board member, one who is not currently an officer, vote for himself once nominated to replace an officer who resigned, in order to establish a majority vote? Shouldn't he abstain?

    Thanks in advance.

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    1. sure, there's no problem with voting for yourself into an officer position.

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  26. Hi
    Thanks for this information. Here in Miami We had a board member resign on 8/11/17. The board has yet to fill the position. Two meetings have already transpired with a reduced board. How long can this be permitted to exist and how do we force the board to remedy this situation?

    Thanks in advance

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    1. There's no statutory rule or timeframe. However, the sooner the better. I've had directors resign and there's another election in a month or so and not fill the seat in the meantime. But if there's no intent to fill the seat you'd have to file a complaint with DBPR.

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  27. When a board member resign in the middle of his mandate, can he run again for the board at the next annual members meeting ??
    Thanks

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  28. When is an outgoing HOA officer required to turn over all property to th new officer? Within a certain time frame of election, assumption of office?

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  29. When is a outgoing HOA officer obligated to turn over HOA property to the new officer? Is there a certain time frame? Does it begin with election to the office or swearing-in to the office?

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  30. Does the president get a swing vote in a Four person dead locked condo board?

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  31. In a Condo Assoc there are 5 BOD's. 3 resign. The remaining 2 want to have a meeting to appoint 3 new members at a noticed meeting. How do they do an agenda for the meeting without being able to establish a quorum? Do they start out the meeting by appointing a third director?

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