How do you overturn a condo board that ignores owners and shrugs its shoulders at the petition to remove the board?

Living in a house managed by a condominium, cooperative or residents association? Do you have questions about what they can or cannot do? Ryan Poliakoffattorney and author based in Boca Raton, has answers.

Question: Our HOA has an amendment filed in 1998 that purports to give the power to make additional changes to the board of directors without input from the homeowners. The problem is that this 1998 amendment was never voted on by our owners, and the statement would have required member approval to be amended in this way in the first place.

When you look at the amendment itself, there is no mention of the homeowners’ vote. This issue recently arose before an administrative judge in the context of revitalizing our agreements. One of our directors testified that an opt-in vote was held in 1998, and I testified to the contrary, but the judge believed the director and ruled that the change was valid.

We want to remove this illegal change. At least 20% of us signed a petition to remove the board, but the board refuses to add the issue to the agenda for our next membership meeting. We try to fight this, but the association’s lawyer always deceives us. What can we do? Signed, RC

Dear RC,

Your question raises a few different and unrelated questions. Let’s deal with the change first.

In litigation, there is a statute of limitations that dictates that you must initiate legal action within a certain period of time after the original dispute. When contesting changes to a declaration, this period is five years. Therefore, if someone wanted to challenge the legitimacy of that 1998 change, they would probably have to do so by 2003. It is past that deadline and I think it would be very difficult to challenge the legitimacy of the change now. Your experience with the administrative law judge is a good example of why the law has statutes of limitations – today, 25 years later, it is nearly impossible to determine precisely how the change was approved and whether it was valid. I think this path will be a dead end.

However, its statement now says it can only be changed by the council. This is good, because if you get a board that agrees with your position on the amendment, you can return the statement to what it was, and after that point, the only way to amend it again would be through a member vote.

There are two main ways to recall a board: by a small percentage (10%) of the members asking the board to call a meeting of members to vote on the recall; or instead notifying the board of removal via written petition, where most owners submit written forms removing board members all at once. It appears you tried the first method, and I have no idea whether you did it correctly and whether the council was right to ignore your demand. But I can tell you, in general, that a recall by vote of the members at a meeting is rarely successful. The much more consistent way to remove a board is to collect and submit properly executed written petitions. It will be necessary for the majority of all residences to agree to the recall, and there is a specific form made available by the Condominium Division to be used for this purpose. This is the best way to achieve your goals.

I must warn you, however, that just because you and a considerable number of your neighbors are angry about this issue does not mean that you have the majority support necessary for a recall. I have seen many situations where very motivated homeowners assume that the majority of their neighbors must agree with them, but they simply don’t.

Another potential pitfall is that it is very easy to make technical errors that will invalidate your recall attempt. If you make the attempt too close to an election, or fill out the forms improperly, or have the wrong people sign the forms, it will fail.

You say in your letter that the association’s attorney is consistently smarter than you, and this will continue to happen simply because the law is complicated and it is unreasonable to assume that a person who is not an expert in the law relating to HOAs would be able to navigate it. better than a lawyer who works in the field every day. I highly recommend that you and your like-minded neighbors raise funds to hire an attorney to help you navigate the recall.

Ryan Poliakoff, partner at Poliakoff Backer, LLP, is a Board Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods – The Consumer’s Guide to Condo, Cooperative and HOA Living.” Email your questions to condocolumn@gmail.com. Be sure to include your location.

This article originally appeared on the Palm Beach Post: The residents’ petition to remove the condominium’s sign is ignored. What now?