Without a doubt, a small book could be written just on the utilization of proxies for a homeowner association annual meeting. On Amazon, there is a book on the use of proxies for annual meetings of businesses, or more precisely, profit corporations. However, there are no specific books for the use of proxies and homeowner association annual meetings. This blog is an overview of the use of proxies within homeowner association annual meetings and special meetings.
Proxies play an essential part in many association membership meetings. This is especially the case when associations have high quorum requirements and low membership meeting turnout. Homeowner association governing documents are authored by a countless number of attorneys resulting in no two homeowner associations having the exact same set. Compounding the lack of nonuniformity within homeowner association governing documents is the varying individual state legislation found within specific homeowner association state statutes or a state’s non-profit corporation statutes. The following is a general outline or overview of the use of proxies within homeowner associations. For specifics related to a homeowner association, that homeowner association’s governing documents and the state statutes should be reviewed as well as obtaining legal guidance from an attorney experienced in homeowner association legal matters.
In the context of a homeowner association annual or special meeting, a proxy is a formal authority given to another party by a homeowner association member to act on their behalf in their absence at a homeowner association membership meeting. The proxy party would typically not be required to be a member of the homeowner association. An important distinction is that the proxy form is not the proxy; the proxy is the person designated on the proxy form.
A common misconception leads some to believe that the actual paper proxy form is akin to currency and can be used by any party at a homeowner association meeting. A person who has been designated on a proxy form as the proxy cannot simply give that proxy form to another party and automatically transfer their proxy authority to that person. Proxy authority is not transferrable by the proxy holder.
Generally speaking, there is no universal or standard proxy form; in most homeowner association situations, the proxy authority must be given in written form. Unless prohibited by the homeowner association’s governing documents, the exception is in certain instances, telephonic (by telephone) transmissions and certain electronic applications are permissible. These nonwritten alternatives, telephonic and electronic applications, are provided for in some state statutes governing nonprofit corporations and specific homeowner association statutes.
Generally speaking, the homeowner association member must sign the proxy form, either personally or by the member’s attorney-in-fact. A proxy form in an electronic format that bears the member’s electronic signature is considered valid in certain states.
A proxy’s appointment is generally effective when accepted and filed by the homeowner association board of director’s secretary. Proxy forms can be written specifically to be valid for a particular meeting or for an extended period of time. A homeowner association’s governing documents or state statutes could limit the length of time a proxy could be appointed to another party.
The appointment of a party as a proxy is typically revocable by the homeowner association member who appointed the proxy. Some homeowner association governing documents and state statutes allow for revocable proxies, and some specifically prohibit the use of irrevocable proxies. A proxy appointment is revocable by the appointing member attending the homeowner association meeting and voting in person. Or by the homeowner association member delivering a written statement to the board secretary revoking said proxy appointment. A proxy appointment can also be revoked by the homeowner association member submitting a subsequent proxy form appointing another party. This second proxy appointment would automatically revoke the prior proxy appointment when accepted and filed by the secretary. The secretary of the board of directors would certify and file the proxy appointment form with the latest date.
In the context of a homeowner association, there are typically two types of proxies: a general proxy and a limited proxy. A general proxy permits the appointed party the authority to vote as they see fit regarding any business brought before the homeowner association meeting. A limited proxy allows a member to direct their appointed proxy in how to exercise the proxy. For certain situations, proxy forms can be structured as a combination of both general and limited.
The wording of a proxy form can vary. However, a proxy form at a minimum should have wording such as: “I, John Smith, appoint Jane Jones as my proxy.” The proxy should include a place for the appointing member to sign and date. There is typically no requirement for a specific “Proxy Form.” If a document is submitted to the board secretary with the minimum proxy information noted above, and the intent of the appointing member can be gained, it should be certified and filed. State statutes and homeowner association governing documents could have additional requirements for how a proxy form is composed and submitted to the board secretary.
Concerns or outright objections to the use of proxies come up frequently within homeowner associations. The concern that seems to be the most prevalent is in some members obtaining large numbers of proxies and attempting to unduly influence board elections or other decisions of the assembly. Another concern is that members who appoint proxies and do not attend membership meetings are less informed. State legislatures and some homeowner associations have implemented restrictions on the use of proxies in attempts to reduce these concerns. On occasion, homeowner associations have amended their bylaws, preventing someone from using or limiting the number of proxies that can be utilized at a membership meeting. The Arizona legislature implemented a statute restricting the use of proxies in favor of mail-in ballots. Nonetheless, when a member signs a proxy form, they could be assigning their authority to another and missing out on the happenings within their homeowner association. And there is not much a board of directors or the membership can do to prevent this, short of legislation or a bylaw amendment.
- Time Frame – It is common that proxies have a time frame of effect or expiration date. This many times will be dictated by state statute.
- Revoking a Proxy – A proxy can usually be revoked by the member who authorized the proxy by attending the meeting or by submitting a sequential proxy form appointing another party. Or by a written statement revoking the proxy.
- Who Is the Proxy – Commonly misunderstood is that the proxy is not the completed form, but the actual person granted the authority.
- General Proxy Form – General proxies give blanket authority to the holder. Essentially the holder can vote however they see fit on any matter that may be undertaken at a membership meeting.
- Limited Proxy Form – A limited proxy, often referred to as a directed proxy, will commonly list the issues to be decided and how the proxy holder is to vote.
- Exercising proxies is not permitted in board of directors meetings. Deliberative assemblies such as board meetings are not conducive to the use of a proxy; primarily because proxies are incompatible with the essential characteristics, discussion, and debate of a deliberative assembly. [RONR (11th ed.), p. 414-15.] Key Points About Proxy Forms.
This is an example of a general proxy:
This is an example of a combination general proxy and limited proxy:
William Douglas Management offering homeowner association management services since 1980.
© Copyright 2021 – William Douglas Property Management, Inc.
William Douglas Management offers management services in:
HOA Property Management Charlotte NC
HOA Property Management Raleigh NC
HOA Property Management Greenville SC
HOA Property Management Greensboro NC
HOA Property Management Charleston SC
HOA Property Management Columbia SC
HOA Property Management Myrtle Beach SC
HOA Property Management Mooresville NC
HOA Property Management Fort Mill SC
HOA Property Management Asheville NC
Legal Disclaimer: This blog is presented solely for entertainment and educational purposes. The blog’s author is not an attorney nor offering legal advice. The blog’s author and publisher are not offering or presenting this work as legal or any professional services advice or guidance. State statutes regarding homeowner associations can vary from one state to another, so state statutes will need to be reviewed and may conflict with the material found within this blog. Every homeowner association is different, and the advice and strategies contained herein may not be suitable for every situation. The reader should always seek the services of a competent and experienced homeowner association attorney who specializes in homeowner association law.