What Your HOA Board Owes You, and How Owners Can Remove Board Members

HOA board members are volunteer neighbors, but in states such as Florida and Nevada the HOA statute itself calls them fiduciaries, obligated to act in good faith and with reasonable care. Removal is usually in the owners' hands rather than the board's, though the vote needed and the steps vary widely.

This guide uses Florida, California and Nevada as examples of board duties, owner recall votes and safeguards around association money. Because a recall or a funds dispute can turn on the exact wording of the statute and your governing documents, for your specific situation a licensed attorney in your state is the right resource. This is general information, not legal advice.

What does an HOA board owe homeowners?

Board duties come from several layers at once: the state's HOA statute, the state's nonprofit corporation law (most HOAs are nonprofit corporations), and the association's own declaration (CC&Rs), articles and bylaws. HOA Bylaws, CC&Rs and Rules explains what each document does. Federal law, such as the Fair Housing Act, also limits what any board may do.

Fiduciary duty. Florida's HOA statute says directors and officers "have a fiduciary relationship to the members who are served by the association" (Fla. Stat. § 720.303(1)). Nevada's common-interest ownership law says board members and officers "are fiduciaries and shall act on an informed basis, in good faith and in the honest belief that their actions are in the best interest of the association" (NRS 116.3103(1)).

Standard of care. Nonprofit corporation law fills in what that means. California's Nonprofit Mutual Benefit Corporation Law requires a director to act "in good faith, in a manner such director believes to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances" (Cal. Corp. Code § 7231(a)). Florida applies its nonprofit standard to HOA directors: act "In good faith" and as the director "reasonably believes is in the best interests of the corporation" (Fla. Stat. §§ 720.303(1), 617.0830(1)).

What the duty does not mean. It is not a promise that every decision turns out well. California says a director who meets the standard "shall have no liability based upon any alleged failure to discharge the person's obligations as a director" (Cal. Corp. Code § 7231(c)), and Nevada applies "the business-judgment rule" (NRS 116.3103(1)(a)). The standard targets bad faith, carelessness and self-interest, not honest mistakes.

Conflicts of interest. Florida requires directors and officers to disclose "any activity that may be reasonably construed to be a conflict of interest at least 14 days before voting on an issue or entering into a contract that is the subject of the conflict" (Fla. Stat. § 720.3033(6)(b)), and members may vote to cancel a contract with a director's business at the next members' meeting (§ 720.3033(2)(d)).

Can homeowners remove an HOA board member?

Often, yes, by a vote of the owners. All three example states allow it; the vote required and the procedure are where they differ.

Florida. "Regardless of any provision to the contrary contained in the governing documents," any director "may be recalled and removed from office with or without cause by a majority of the total voting interests" (Fla. Stat. § 720.303(10)(a)1.). That means a majority of all voting interests, not just those who vote. Recall can be "by an agreement in writing or by written ballot without a membership meeting" (§ 720.303(10)(b)1.), or at a meeting only "If the declaration, articles of incorporation, or bylaws specifically provide" (§ 720.303(10)(c)1.).

California. In an HOA incorporated as a nonprofit mutual benefit corporation, directors may be removed without cause, subject to limits such as cumulative voting (Cal. Corp. Code § 7222(a), (b)(1)). In an association "with fewer than 50 members, the removal is approved by a majority of all members"; with 50 or more, it must be "approved by the members" (Cal. Corp. Code § 7222(a)), which § 5034 defines as a majority of the votes represented and voting at a meeting with a quorum present, provided those votes are also a majority of the required quorum (or by written ballot), unless the bylaws require more. Under the Davis-Stirling Act, "election and removal of directors" must be held by secret ballot under the Act's procedures, which prevail over the Corporations Code where the two conflict (Cal. Civ. Code § 5100(a)(1), (e)).

Nevada. Owners making up at least 10 percent of the association's total voting members (or a lower bylaw percentage) can call a removal election by petition, and removal requires votes in favor equal to "At least 35 percent of the total number of voting members of the association" and "At least a majority of all votes cast in that removal election" (NRS 116.31036(1), (2)).

Developer-appointed directors and voting classes. Florida's recall right is "subject to the provisions of s. 720.307 regarding transition of association control" (§ 720.303(10)(a)1.), and Nevada's excludes "a member appointed by the declarant" (NRS 116.31036(1)). A seat elected by one class of members is generally removable only by that class (Fla. Stat. § 720.303(10)(a)2.; Cal. Corp. Code § 7222(b)(2)).

Other states have their own rules, and bylaws often fill in the procedure. The state HOA laws directory links each state's main statutes, and HOA meetings and elections covers notice, quorum and voting.

What happens after a Florida recall vote?

Florida spells out the board's response in detail. Within 5 full business days after receiving written recall ballots, the board must hold a meeting and either certify the recall, effective immediately, or, within 5 more full business days, "file an action with a court of competent jurisdiction or file with the department a petition for binding arbitration" (§ 720.303(10)(b)2., (d)). If the board does not hold that meeting in time, "the recall shall be deemed effective" (§ 720.303(10)(f)). The state division or a court may not accept a recall petition or action for filing when there are 60 or fewer days until the director's scheduled reelection, or within 60 days after the director's election (§ 720.303(10)(l)).

Can the board remove one of its own members?

Usually the board cannot simply vote a colleague off; California's Corporations Code says that except as its removal provisions allow, "a director may not be removed prior to the expiration of the director's term of office" (Cal. Corp. Code § 7222(d)). Florida does require suspension or removal in specific situations. A director who misses the deadline for the required education certificate "is suspended from the board until he or she complies" (Fla. Stat. § 720.3033(1)(b)). If the board finds a director or officer accepted a kickback, "the board must immediately remove the officer or director from office" (§ 720.3033(3)). And a director or officer charged with certain crimes "must be removed from office and a vacancy declared" (§ 720.3033(4)(a)).

What if an HOA board is misusing funds?

Questions about removal often overlap with worries about HOA embezzlement or a board misusing money. Statutes build in several safeguards around association funds.

Criminal charges and removal. Under Fla. Stat. § 720.3033(4)(a)2., the crimes that trigger mandatory removal include "Theft or embezzlement involving the association's funds or property" and, under (4)(a)3., destroying or refusing to allow inspection of official records "in furtherance of any crime". If the charges are resolved without a finding of guilt or an accepted plea of guilty or nolo contendere, the director or officer is reinstated for the rest of the term (§ 720.3033(4)(b)). A charge is not a conviction, and none of this is a reason to assume wrongdoing.

Bonding and financial reporting. Florida requires insurance or a fidelity bond "for all persons who control or disburse funds of the association", unless members waive it each year (§ 720.3033(5)), plus an annual financial report available to members (§ 720.303(7)). California requires the board to review, monthly, reconciliations of the operating and reserve accounts, bank statements and "the check register, monthly general ledger, and delinquent assessment receivable reports" (Cal. Civ. Code § 5500). HOA reserve funds explains how reserve accounts work.

Records are the starting point. Many states give owners a right to inspect the association's books and records, and that is generally how owners see where money went. In Florida, official records must be made available "within 10 business days after receipt by the board or its designee of a written request from the parcel owner" (Fla. Stat. § 720.303(5)(a)). The HOA records requests topic page links state guides, including Florida HOA records, California HOA records and Nevada HOA records.

If records raise questions, options may include raising them at a meeting, a recall effort where the numbers exist, or other remedies; whether any of them fits depends on the facts, and each carries costs and risks. A licensed attorney can assess a specific situation; Finding an HOA Lawyer covers how owners typically find one, and the HOA disputes and help topic page lists other resources.

Frequently asked questions

Do HOA board members have a fiduciary duty?

Often, yes. Florida says directors and officers "have a fiduciary relationship to the members" (§ 720.303(1)), and Nevada calls board members fiduciaries (NRS 116.3103(1)). Elsewhere, similar duties may come from the state's nonprofit corporation law and the governing documents.

How many votes does it take to remove an HOA board member?

It depends on the state and the governing documents. Florida requires a majority of the total voting interests. California requires a majority of all members in associations under 50 members, and otherwise approval by the members as defined in Corp. Code § 5034. Nevada requires at least 35 percent of all voting members and a majority of votes cast.

Can an HOA board member be removed without cause?

Florida, California and Nevada all allow owners to remove directors without cause, following their procedures. Other states may differ, and developer-appointed directors can be treated differently.

Is an HOA board member automatically removed for embezzlement?

In Florida, a director or officer charged by information or indictment with theft or embezzlement of association funds or property must be removed from office under § 720.3033(4)(a), and is reinstated for the rest of the term if the charges are resolved without a finding of guilt or an accepted plea of guilty or nolo contendere. Other states may handle this differently, and the governing documents and nonprofit corporation law can matter too.

Sources

• Florida Statutes § 720.303 — Association powers and duties; official records; recall of directors
• Florida Statutes § 720.3033 — Officers and directors
• Florida Statutes § 617.0830 — General standards for directors
• California Corporations Code § 5034 — Approval by the members
• California Corporations Code § 7222 — Removal of directors
• California Corporations Code § 7231 — Director standard of care
• California Civil Code § 5100 — Secret ballot elections, including removal of directors
• California Civil Code § 5500 — Board financial review
• Nevada Revised Statutes 116.3103 — Executive board members are fiduciaries
• Nevada Revised Statutes 116.31036 — Removal of member of executive board