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Subject: Negative Consent Proxy
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KoraN
(Georgia)

Posts:4


06/04/2019 7:12 AM  
My friend's Georgia HOA just called a special meeting with one week's notice to vote on an amendment to their covenants. We all know how hard it can be to reach the minimum vote (in this case 75%) to change an HOA's covenants. This group is taking an extra special step to ensure they have enough votes. The letter contains a NEGATIVE CONSENT PROXY which states, "I understand that if I do not return this form to the HOA by June 11, 2019 and I do not attend the meeting in person, then I am authorizing the HOA President to cast my vote as he sees fit."

My spidey senses are telling me this is an abuse of the board's power, but I am having a hard time finding anything specific to support that thought. Her board has not promptly replied to her request for a copy of the covenants or the bylaws, so I'm reaching out on this forum to see if anyone has ever heard of a "Negative Consent Proxy".

Kora
BobB31
(Florida)

Posts:96


06/04/2019 7:27 AM  
Without checking the statutes or your governing docs, I still have to say it's ridiculous. Without the signed form being returned, there is no evidence the member even READ the form, let alone indicated his understanding of it.
However, look at the statute here:
https://law.justia.com/codes/georgia/2010/title-14/chapter-3/article-7/part-2/14-3-724/
BobB31
(Florida)

Posts:96


06/04/2019 7:38 AM  
Also, I don't understand why your friend needs to request copies of the governing docs - they should have been given to him when he purchased the house. How else could he have made a decision as to whether to buy or not?
Anyways, if the board is not forthcoming, the docs are publicly recorded and can be obtained for a fee.
BobB31
(Florida)

Posts:96


06/04/2019 7:41 AM  
Posted By BobB31 on 06/04/2019 7:38 AM
Also, I don't understand why your friend needs to request copies of the governing docs - they should have been given to him when he purchased the house. How else could he have made a decision as to whether to buy or not?
Anyways, if the board is not forthcoming, the docs are publicly recorded and can be obtained for a fee.


I forgot to paste this link:
https://www.hopb.co/hoa-document-request#Tips
KoraN
(Georgia)

Posts:4


06/04/2019 7:57 AM  
Thanks, BobB31. She inherited the home and the docs are probably in the package with all the legal paperwork from that time. She's been leasing the home to the tenants who lived there when she inherited the home, so she doesn't interact with the HOA much. We'll see if the board responds to her request for copies. Or she can dig through her files when she gets home tonight. She just received the emailed NEGATIVE CONSENT PROXY AUTHORIZATION and we all said, "whhaaa????"
NpS
(Pennsylvania)

Posts:3363


06/04/2019 8:36 AM  
Hi Kora

1. Prior notice requirements are typically 10 days. 7 days seems very short. Check the docs.

2. Prior notice requires that you get an exact copy of what's going to be voted on. You didn't say anything on what the vote was about. If they didn't include the exact language in the notice, it's not a valid notice.

3. I've seen a lot of HOA docs. There has never been a negative consent clause in any of them.




Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
JohnC46
(South Carolina)

Posts:8347


06/04/2019 9:05 AM  
Kora

While not an attorney I say the Proxy wording is illegal. It is common to return a Proxy giving the BOD the right to vote it as they see fit but this wording says we get to vote for you if we do not hear from you.
KoraN
(Georgia)

Posts:4


06/04/2019 10:17 AM  
Posted By NpS on 06/04/2019 8:36 AM
Hi Kora

1. Prior notice requirements are typically 10 days. 7 days seems very short. Check the docs.

2. Prior notice requires that you get an exact copy of what's going to be voted on. You didn't say anything on what the vote was about. If they didn't include the exact language in the notice, it's not a valid notice.

3. I've seen a lot of HOA docs. There has never been a negative consent clause in any of them.








1. I shared with her the section of the Georgia Corporate Code for Nonprofit Corporations regarding notice of meetings:

• (c) Notice is fair and reasonable if:
o (1) The corporation notifies its members of the place, date, and time of each annual, regular, and special meeting of members no fewer than ten days (or if notice is mailed by other than first-class or registered mail or statutory overnight delivery, 30 days) nor more than 60 days before the meeting date;

2. The content of the proposed amendment is clearly stated and the proxy authorization gives all the necessary information for their goal. They are amending the covenants to prohibit leasing within the community. Her rental home will be "grandfathered" in and she doesn't know anyone else in the neighborhood, so she's trying to decide if making a fuss over the president's abuse of his power is worth her time.

3. Yep, this one seems to me to be a very blatant abuse of board authority. But we haven't seen the docs yet, so...



Thanks, everyone, for your thoughts.

Kora
KoraN
(Georgia)

Posts:4


06/04/2019 10:19 AM  
Posted By JohnC46 on 06/04/2019 9:05 AM
Kora

While not an attorney I say the Proxy wording is illegal. It is common to return a Proxy giving the BOD the right to vote it as they see fit but this wording says we get to vote for you if we do not hear from you.




That was our thought too. If you received this letter, how would you proceed?

K
NpS
(Pennsylvania)

Posts:3363


06/04/2019 10:39 AM  
The 10 day notice rule matters only if she wants to challenge the legitimacy of the vote and does not in fact vote. But she can't challenge the legitimacy if she actually votes. No harm, no foul.

If she's grandfathered, that will only last until she sells. The buyer won't be able to rent. Depending on the circumstances, that could make her unit more or less valuable to a buyer.


Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
JohnC46
(South Carolina)

Posts:8347


06/04/2019 10:47 AM  
Posted By KoraN on 06/04/2019 10:19 AM
Posted By JohnC46 on 06/04/2019 9:05 AM
Kora

While not an attorney I say the Proxy wording is illegal. It is common to return a Proxy giving the BOD the right to vote it as they see fit but this wording says we get to vote for you if we do not hear from you.




That was our thought too. If you received this letter, how would you proceed?

K




If they will not honor your request to postpone the meeting and correct the Proxy wording, you have no choice but to have an attorney draw up a cease and desist letter.
GenoS
(Florida)

Posts:2960


06/04/2019 1:09 PM  
Negative consent proxy sounds like a bunch of BS to me.
KellyM3
(North Carolina)

Posts:1375


06/06/2019 8:44 AM  
A negative consent proxy will most certainly be improper. The proxy and quorum rules that HOAs have on their books are absolutely there to create a hurdle to changing covenants and by-laws. This strategy violates the Community Trust, in my opinion. I hope the effort fails.
RichardP13
(California)

Posts:3595


06/06/2019 7:37 PM  
If properly used and all the I's are dotted and t's crossed, I don't see any reason why this might not be valid. I have seen similar things in state ballot initiatives, where the same thing is on a ballot written two different ways. If you don't read carefully, a voter can vote against one and vote for the other, depending on how it is worded.

Been there, Done that
NpS
(Pennsylvania)

Posts:3363


06/07/2019 12:15 AM  
Posted By RichardP13 on 06/06/2019 7:37 PM
If properly used and all the I's are dotted and t's crossed, I don't see any reason why this might not be valid. I have seen similar things in state ballot initiatives, where the same thing is on a ballot written two different ways. If you don't read carefully, a voter can vote against one and vote for the other, depending on how it is worded.



Yeah. I think that's what this is modeled after. But I don't think it will fly.

Too corruptible.

If I'm on vacation for 2 weeks, and the notice comes while I'm away, does that mean I'll be voting what the Pres wants no matter what it is? Scary thought.


Je publie un degagement de toutes responsabilite. Read all posts at your own risk.
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