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Subject: CC&R change
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Author Messages
RickR12
(California)

Posts:7


02/09/2018 8:29 PM  
A special meeting has been called by a few owners to make changes to the CC&R (with the Board's blessings). This group has apparently collected proxies already from majority of the individuals using a non standard format of the proxy that was prepared by an outside attorney. Turn out at our meetings is usually very low.

Is the use of a Proxy form that was not prepared by the Board legal?

RichardP13
(California)

Posts:3107


02/09/2018 9:22 PM  
SURE, unless your governing documents say otherwise, which, in my experience won't happen.
KerryL1
(California)

Posts:5852


02/09/2018 10:49 PM  
What % of all Owners do you need to approve an amendment to the CC&Rs?

Just curious, how many lots in in your hOA?
KerryL1
(California)

Posts:5852


02/09/2018 10:49 PM  
What % of all Owners do you need to approve an amendment to the CC&Rs?

Just curious, how many lots in in your hOA?
TimB4
(Virginia)

Posts:16005


02/10/2018 4:32 AM  
Rick,

Yes, those forms would be fine and the Board should accept them unless there is reason to suspect forgery.
If forgery is suspected, the Board should attempt to verify with the owner.
RickR12
(California)

Posts:7


02/10/2018 6:46 AM  
Close to 100 units
RickR12
(California)

Posts:7


02/10/2018 6:50 AM  
Posted By TimB4 on 02/10/2018 4:32 AM
Rick,

Yes, those forms would be fine and the Board should accept them unless there is reason to suspect forgery.
If forgery is suspected, the Board should attempt to verify with the owner.




My neighbor who signed it said he was asked not to date this proxy and that they would put later (once they date for the special meeting is determined). They is forgery right??

RickR12
(California)

Posts:7


02/10/2018 6:52 AM  
Posted By KerryL1 on 02/09/2018 10:49 PM
What % of all Owners do you need to approve an amendment to the CC&Rs?

Just curious, how many lots in in your hOA?




About 100 units and 51% to modify CC&R
TimB4
(Virginia)

Posts:16005


02/10/2018 6:55 AM  
Check statutes (corporate), proxys are typically only good for 11 months from date of signature.
You neighbor should have never signed without dating.


Is it fraud, it's more of a technicality.
If you know that it has been less then 1 year since they started collecting proxies, I wouldn't worry about it. If it has been more then one year, failure to date it leaves it open for a legal challenge.

If the Association doesn't want the amendment, they could claim the proxies have been altered.

Personally, you may want to contact those spearheading the issue and point out the problem.
They can always go back and get a new proxy.
RickR12
(California)

Posts:7


02/10/2018 7:08 AM  
The Board is behind this group wanting to change it and they have been signed in the past 1 year.

But, wouldn't manually adding the date to the Proxy form constitute fraud?

Yes, they can go back to get a new proxy, but it's going to take them several months to do it by which time we would be able to convince others (like my neighbor) not to sign it.

DouglasK1
(Florida)

Posts:1263


02/10/2018 7:53 AM  
If more than half of the owners want the changes, they will probably happen one way or another. Note that owners can usually revoke or replace a proxy with a newer one, so if people change their minds they can change their vote. If you think owners didn't understand the changes, or otherwise might change their minds, start getting proxies of your own against. Make sure they are dated and maybe include language that specifically says they supersede proxies that were assigned to whoever the first batch were assigned to.

Escaped former treasurer and director of a self managed association.
BenA2
(Texas)

Posts:531


02/10/2018 8:54 AM  
Posted By RickR12 on 02/10/2018 6:50 AM
Posted By TimB4 on 02/10/2018 4:32 AM
Rick,

Yes, those forms would be fine and the Board should accept them unless there is reason to suspect forgery.
If forgery is suspected, the Board should attempt to verify with the owner.




My neighbor who signed it said he was asked not to date this proxy and that they would put later (once they date for the special meeting is determined). They is forgery right??




It wouldn't be forgery. Even signing someone's signature is not forgey in many states and under common law unless there is fraudulent intent. Still, I would consider any proxy not dated by the signer invalid. What's to keep someone from using it a year from now when circumstances may be completely different.

You also should check to see if proxies are even allowed for votes on amendments to CC&Rs. If it is not specifically authorized by your governing documents or state law, you should not use them.
GenoS
(Florida)

Posts:2466


02/10/2018 8:05 PM  
Posted By RickR12 on 02/10/2018 7:08 AM
But, wouldn't manually adding the date to the Proxy form constitute fraud?

In Florida, a proxy must be dated to be valid and I expect that's the case in most states. An undated proxy should not be considered because it's not valid on its face. For someone to then take it and fill in a date is probably forgery. I don't know if if that would be fraud or not.
GenoS
(Florida)

Posts:2466


02/10/2018 8:18 PM  
Ben is right when he says forgery requires fraudulent intent. In the FL statutes, forgery must include, "... intent to injure or defraud any person".

This FindLaw article says a conviction for forgery requires the following:

1. made, altered, forged or counterfeited
2. a written instrument falsely purporting to be that of another person or entity
3. and appearing to have some legal significance
4. with intent to injure or defraud any person

I'm no lawyer, but I think altering an invalid proxy to make it appear valid meets all four of those tests. Every homeowner is injured when bogus proxies are treated as valid since the true will of the voters cannot be assured.
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