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Real estate Q&A: How to stop a board president helping himself to HOA resources [Sun Sentinel :: BC-REAL-REALESTATE-QA:FL]

Q: The president of our community association has been putting in extra landscaping and improvements in the common area in front of his townhome and using community resources to do it. I tried calling him out on it at a board meeting and was ignored. What can I do to stop this?

- Lorraine

A: All board members, including the president, have a fiduciary responsibility to the community. This means they are in a position of trust and must act with care and loyalty within the scope of their authority. The president most certainly can't treat himself to better conditions and amenities than the rest of the homeowners.

As with all things related to community associations, you must first review your association's documents to learn the specifics for your neighborhood. The president and all officers serve at the pleasure of the board of directors and can be removed and replaced by the board. Unless further action is taken, the president would still be a board member until he is voted out of office or otherwise removed.

A recall election could be held if enough people in your community want to vote him off the board entirely. Most recall elections involve getting a special form signed by a majority of the homeowners and then certified by the existing board, which removes and replaces the offending member.

The situation may rise to the level of embezzlement or theft, and there could be criminal repercussions. This can be a complex area of the law, so I recommend contacting an experienced attorney to walk you through your options.

If other board members are concerned about this and interested in removing the president, then it would be appropriate for you to use the association's attorney. But if you don't think board members have any desire to remove one of their own, you or a group of homeowners would need to hire your own attorney.

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ABOUT THE WRITER

Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He practices real estate, business litigation and contract law from his office in Sunrise, Fla. He is the chairman of the Real Estate Section of the Broward County Bar Association and is a co-host of the weekly radio show Legal News and Review. He frequently consults on general real estate matters and trends in Florida with various companies across the nation. Send him questions online at www.sunsentinel.com/askpro or follow him on Twitter @GarySingerLaw.

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