Get 2 months of free community web site hosting from Community123.com!
Monday, December 10, 2018
Get 2 months of free community web site hosting from Community123.com!


SBCA: Free education for HOAs and condos on satellite placement issues.
(National Trade Organization)
Helping HOAs, condos and property managers with satellite placement issues since 1986.
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Proxy for a vote that's not a YES-NO question
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
GenoS
(Florida)

Posts:2518


12/03/2018 8:49 PM  
Our documents give the board the authority to enact reasonable rules and regulations. The Bylaws reiterate that and adds..., "Such rules and regulations shall be confirmed or amended by a majority of the active members of the Association present at the next annual meeting of the Association."

A general proxy would give the proxyholder the ability to vote to confirm or amend the rules and regulations without any problem. How can something like that be done with a directed (limited) proxy? If you tell your proxyholder to vote "no" on any amendments proposed, you're talling him/her to vote "yes" on the presented rules & regulations as presented (without amendment). If you tell your proxyholder to vote "yes" on the rules & regulations as presented then it's the same thing. You can't know ahead of time what amendments will be proposed by and voted on by the homeowners. What is a proxy giver to do?

The statute FS 720 says, "The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy." Our Bylaws explicitly give the homowners the right to vote by proxy. How the heck is that supposed to happen on questions that have no clear YES-NO vote?

Ideally we should amend the bylaws to exclude proxy voting on questions regarding the Rules & Regulations. That would work in the future, but how should we handle this right now?
AugustinD


Posts:1208


12/03/2018 8:57 PM  
Posted By GenoS on 12/03/2018 8:49 PM
A general proxy would give the proxyholder the ability to vote to confirm or amend the rules and regulations without any problem. How can something like that be done with a directed (limited) proxy? If you tell your proxyholder to vote "no" on any amendments proposed, you're talling him/her to vote "yes" on the presented rules & regulations as presented (without amendment). If you tell your proxyholder to vote "yes" on the rules & regulations as presented then it's the same thing. You can't know ahead of time what amendments will be proposed by and voted on by the homeowners. What is a proxy giver to do?


I always took the meaning of "proxy" to be closer to "power of attorney" than anything else. "Proxy" to me does not merely mean the person stands in for the absent person just to cast the vote the absent person directed. The person assigning a proxy to another must read the section of the Bylaws you cite and understand that he or she has to select someone who has judgment like his or her own. The person to be absent could always have a long talk with the person to be assigned the proxy and see if their values are similar.

If your HOA's board is very worried about this, then it should do all it can to allow people to listen to the meeting by phone. When a vote is called for, give the proxy holders time to speak with members who are absent and take direction. This is not foolproof but I think it's the best the HOA can do.
RichardP13
(California)

Posts:3130


12/03/2018 10:08 PM  
First, the majority of time, the Board has sole ability to create or amend Rules and Regulations, without a vote of the members. Your document, as posted doesn't make a lot of sense. If you have 100 members and quorum for the annual meeting is a majority or 51, only a majority of those present have the ability to confirm or amend proposed rule changes. Let's say 51 proxies are returned, quorum is satisfied and 10 people show up for the meeting. Only 6 are needed to confirm.

Easier way to go about this is amend the documents that changes to the Rules can only happen at the annual meeting, the proposed changes must be mailed to all owners at least 90 days prior for owner comment. Once the board approves the changes a ballot or proxy is created to either confirm, yes, or deny, no. the changes. If approved, changes go into effect 30 days after the final vote is tabulated.

Remember, proxies go to the corporate world. I once for Countrywide/Bank of America with well over 100,000 proxies mailed out each year. I don't think Augustine's suggestion in his last paragraph would work very well.
JohnC46
(South Carolina)

Posts:7865


12/04/2018 5:00 AM  
Geno

Word the Proxy to have two choices:

1. Returned to establish Quorum with no designated Proxy holder.

2. Returned to establish Quorum and with a designated Proxy holder who can vote the Proxy as they wish.

Do not ask for Yes or No votes on the Proxy. Let those attending the meeting and those holding Proxies vote as outlined in your Bylaws which I understand the rule(s) passes if approved by a majority attending the meeting.

20 in person, 6 of which also hold one designated Proxy each, makes for 26 eligible votes. 14 votes being the majority.

TimB4
(Virginia)

Posts:16045


12/04/2018 3:23 PM  
Personally, I would send a draft of the documents to the membership and ask for comment.
This is where you will have potential amendments. The Board should review the comments and adjust as they see fit.

When we rewrote our architectural guidelines it took over a year to go through the process. However, we allowed everyone to review and comment (the committee, the board, the membership, the attorney). When the vote came, there was no issue as everyone had had their say.
GenoS
(Florida)

Posts:2518


12/04/2018 9:48 PM  
Posted By RichardP13 on 12/03/2018 10:08 PM
First, the majority of time, the Board has sole ability to create or amend Rules and Regulations, without a vote of the members. Your document, as posted doesn't make a lot of sense.

I know and I agree but it is what it is until it's amended.

Posted By RichardP13 on 12/03/2018 10:08 PM
If you have 100 members and quorum for the annual meeting is a majority or 51, only a majority of those present have the ability to confirm or amend proposed rule changes. Let's say 51 proxies are returned, quorum is satisfied and 10 people show up for the meeting. Only 6 are needed to confirm.

Yes and it's even less because a quorum is 30.

Posted By RichardP13 on 12/03/2018 10:08 PM
Easier way to go about this is amend the documents that changes to the Rules can only happen at the annual meeting, the proposed changes must be mailed to all owners at least 90 days prior for owner comment. Once the board approves the changes a ballot or proxy is created to either confirm, yes, or deny, no. the changes. If approved, changes go into effect 30 days after the final vote is tabulated.

That would work. I'm surprised that the situation has existed for almost 30 years and no one ever suggested changing it.

Posted By RichardP13 on 12/03/2018 10:08 PM
Remember, proxies go to the corporate world. I once for Countrywide/Bank of America with well over 100,000 proxies mailed out each year. I don't think Augustine's suggestion in his last paragraph would work very well.

I did some research on proxies and most of what I found concerned corporations and shareholders. Apparently there are companies that do nothing else but solicit proxies for corporate proxy battles. Thousands and thousands of proxies aren't unusual. One state's laws (Ohio) say that an actual ballot that is cast will override a proxy. I was wondering about that exact question the other day.
GenoS
(Florida)

Posts:2518


12/04/2018 10:00 PM  
Posted By JohnC46 on 12/04/2018 5:00 AM
Let those attending the meeting and those holding Proxies vote as outlined in your Bylaws which I understand the rule(s) passes if approved by a majority attending the meeting.

The only problem there is our Bylaws say almost nothing.

"A proxy written and signed by a lot owner can be considered as part of the quorum."

and for owner approval to amend the bylaws themselves,

"... by the affirmative vote of the majority of Members who are voting in person or by proxy at a meeting of the Members"

Those are the ONLY two instances of the word "proxy" (or "proxies" for that matter) in the bylaws. There are no election rules or procedures anywhere and Florida law is no help when it comes to HOAs. Voting in a condo election is strictly controlled in the condo statute but the HOA statute leaves it wide open by saying 'do what your bylaws say'. Our bylaws say nothing.

I'm going to throw this in the entire board's lap and suggest they run it by the attorney. I don't want my name associatied with this at all should any problems or disputes arise.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Proxy for a vote that's not a YES-NO question



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement