CONDO EDUCATION

Scariati v. The Villages at Emerald Lakes One Condo. Ass’n, Inc.,

Case No. 2005-02-1485 (Grubbs / Final Order / September 2, 2005)

Arbitration Procedure

Authority to file petition

CASE SUMMARY:

The association's refusal to allow the board member whose recall was sought to see the recall agreement before or during the board meeting on whether to certify the recall was improper. The board has a duty to meet and review the written recall agreement in good faith. Just as a board has the duty to certify a recall properly executed by a majority of the unit owners, the board has a duty not to certify an agreement that has not been signed by a majority of the unit owners. Had the "recalled" board member been allowed to view the written recall agreement before and during the board meeting, she would have noticed the problem with the written recall agreement at that time, as she did when when she finally received a copy of the recall agreement during the course of the arbitration proceeding. Thus, had the board proceeded properly in considering the recall agreement, it could have avoided this subsequent proceeding and the attendant expenses. Failure to comply with 61B-50 / Order of the arbitrator

The basic requirement for a successful recall is that a majority of the voting interests vote to recall that board member. The purpose of all the other rule and statutory requirements is to safeguard the integrity of the process, i.e., to ensure that a recall agreement actually reflects the will of the majority and ensure that the board cannot thwart a valid recall effort supported by the majority. Withdrawal of petition / Withdrawal of written agreement.

Scariati v. The Villages at Emerald Lakes One Condo. Ass’n, Inc.

Scariati v. The Villages at Emerald Lakes One Condo. Ass’n, Inc.(2)

Case No. 2005-02-1485 (Grubbs / Order Denying Motion to Dismiss / June 7, 2005)

The pre-arbitration notice required by §718.1255(4)(b), F.S., is not necessary when a petition for arbitration challenges the board's certification of a recall, just as it is not necessary in a recall case brought by the board pursuant to §718.112(2)(j)3, F.S. When a former board member challenges the certification of her recall, the issues are the same as those that might be raised in a recall petition. In either case the question is whether the board has acted properly in fulfilling its responsibilities in accordance with the statutes and rules relating to the recall of board members. Because of the nature of a recall and the finality of the decision by the board, subject to review by an arbitrator, it is questionable whether a pre-arbitration notice in a recall case would serve any purpose, since the purpose of pre-arbitration notice is to allow the offender to correct his errors and cure his violations without the necessity of formal legal proceedings. Once a board determines that a recall is certified, it is a final decision for all practical purposes.

Scariati v. The Villages at Emerald Lakes One Condo. Ass’n, Inc.(2)