Q: Our Board has 5 total seats and there is one vacancy because a Director moved last month. The remaining 4 Directors are split on how to fill the vacancy and can’t agree. Don’t they have to fill the vacancy? Our next election is not for another 6 months.
P.P., Vero Beach
A: The answer to this question depends on the specific requirements of your Bylaws. Pursuant to both the condominium and HOA statute, the default rule is that vacancies are filled by the remaining Board members for the unexpired term of the resigning Director. If this is the rule governing your community, my opinion on this issue has always been that the Board has an obligation to try and fill vacancy, but the remaining Directors are not required to come to a compromise and actually fill the seat. In other words, if the vote is 2 to 2 on filling the vacancy, and the 4 Directors simply can’t agree, then they have fulfilled their obligations and the seat can be filled at the next election.
It is important, however, to check your Bylaws because the Bylaws may require a special election to immediately fill a vacancy to void this problem. Alternatively, the Bylaws may allow the vacancy to remain open beyond the next election, in which case it becomes more important to fill the vacancy to avoid deadlock on important and necessary Board activity.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. To ask Mr. Adamczyk questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.