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LisaD6


Posts:0


11/20/2019 6:47 AM  
when a unit owner dies.. And there is a will.the son is in the will to takeover everything with sister. And the son is the executive of the will. Can the son..executive sign a proxy for that unit for a meeting Because owner died.
AugustinD


Posts:2045


11/20/2019 7:22 AM  
A reasonable HOA board would require the son to provide to the HOA the court order appointing him executor. Subsequently the HOA should let the son vote on behalf of the estate, including letting the son assign a proxy to someone else.

The son should sign any HOA papers properly, meaning he is supposed to indicate that he is the executor of the estate of so-and-so, deceased.
NpS
(Pennsylvania)

Posts:3910


11/20/2019 9:30 AM  
Upon the death of the owner, control goes to her Estate. The Executor of that Estate has the authority to sign documents on behalf of the Estate.

Augustin suggest getting some form of proof like a court order.

We're not that formal. So to us, it would depend on what the proxy is for and when you need it.

Formal documentation from a probate court can take months, either because the family doesn't deal with it right away or the court is backed up.


Sikubali jukumu. Read all posts at your own risk.
MichelleG7
(Connecticut)

Posts:1


11/22/2019 9:36 PM  
My board is in the same situation with a unit owner. She passed a week ago. The owner was going to give me her proxy for the Owners budget meeting at the end of the year. HEr son has no problem giving me his proxy for this meeting. Will it be hard to get the Court order appointing him executor? IS that the original paper set up while My neighbor was alive?
GenoS
(Florida)

Posts:3362


11/22/2019 9:49 PM  
Posted By MichelleG7 on 11/22/2019 9:36 PM
My board is in the same situation with a unit owner. She passed a week ago. The owner was going to give me her proxy for the Owners budget meeting at the end of the year. HEr son has no problem giving me his proxy for this meeting. Will it be hard to get the Court order appointing him executor? IS that the original paper set up while My neighbor was alive?

I think while someone is alive they're able to grant someone Power of Attorney. There are different types of PoA depending on the state. In all states (I think) a Power of Attorney does not survive the death of the person who gave it.
AugustinD


Posts:2045


11/22/2019 10:23 PM  
Posted By MichelleG7 on 11/22/2019 9:36 PM
My board is in the same situation with a unit owner. She passed a week ago. The owner was going to give me her proxy for the Owners budget meeting at the end of the year. HEr son has no problem giving me his proxy for this meeting. Will it be hard to get the Court order appointing him executor? IS that the original paper set up while My neighbor was alive?


If by "original paper" you mean the son had power of attorney for his mother, then as Geno indicated, this "power of attorney" extinguished at death. As much as some people involved with the estate want to give the POA special powers after death, doing so is wrong, dangerous and invites litigation. POA legally counts for nothing as far as acting on behalf of the estate.

By any chance does the deed for the deceased's property include the name of anyone besides the deceased? If so, then this other person could give you the proxy.

Else the property has to go at least partly through probate. By this I mean that, first, whoever is the named executor has to obtain a copy of the death certificate. This by itself can take a couple of weeks. Second the executor has to appear at probate court, with death certificate and will in hand, and then be approved by the probate court. How long this will take depends on the locale. Connecticut statute appears to require the executor to file the will, and seek the court's appointment as executor, within 30 days of the decedent's death. The court may hold a hearing to answer questions from family members and others or to record people's position on the estate and executor.

NpS suggests this can be treated informally without problems. But estates and questions about who gets what often bring out the worst in families. Before probate, I would not want the HOA appearing to favor one family member over another, as if one family member is more "in charge" and has "more say" than the others. The HOA should not become involved in a family dispute that may become a legal dispute very quickly.

Worse, if the issue being voted on is contentious, other members could rightly challenge the proxy (by a person who has not yet been legally appointed executor) as invalid.

You can roll the dice and accept what is really an invalid (at present) proxy from the son. Maybe most of the time, this will not be a problem. Or you can forego obtaining any proxy for this home until the probate court has formally appointed the son as executor.
NpS
(Pennsylvania)

Posts:3910


11/22/2019 11:43 PM  
Good explanation re probate process Augustin.

Since you referenced my post, I'll expand what I said a bit.

Posted By AugustinD on 11/22/2019 10:23 PM
NpS suggests this can be treated informally without problems. But estates and questions about who gets what often bring out the worst in families. Before probate, I would not want the HOA appearing to favor one family member over another, as if one family member is more "in charge" and has "more say" than the others. The HOA should not become involved in a family dispute that may become a legal dispute very quickly.

Worse, if the issue being voted on is contentious, other members could rightly challenge the proxy (by a person who has not yet been legally appointed executor) as invalid.

You can roll the dice and accept what is really an invalid (at present) proxy from the son. Maybe most of the time, this will not be a problem. Or you can forego obtaining any proxy for this home until the probate court has formally appointed the son as executor.



What I said was that there can be delays of months before any court documents are available. And then: "We're not that formal. So to us, it would depend on what the proxy is for and when you need it."

If there was a contentious issue being decided, we would lean toward formality.

But lets say that A dies the day after she makes B her proxy for the annual meeting vote. On the day that A dies, she is no longer the owner - Her estate is the owner. Technically, the proxy is no longer valid. Are we going to reject the proxy that A signed the day before she died? No. Under these particular circumstances, we are not going to reject the proxy that B brings to the meeting. We will recognize B as A's proxy.

Give me a different set of facts, and we might handle things differently. Luckily and happily we don't have that many people dying and we rarely have homeowner votes on contentious issues.

Also, we are a small community. We generally know who is ill and likely to be moving on. Often we're in touch with family members for a sufficient time to learn who will become authorized to make decisions if that homeowner dies.

I remember a situation where H & W owned a house. H had dementia. W died. There were children from prior marriages and some together. One child paid HOA fees. One moved in with H. One was Executor of H's estate. Then H died. Tough time for the family. We were not going to demand formal documentation so long as HOA fees were current. We collected email addresses from all 3, and added them to our distribution list. So long as we didn't get conflicting messages coming back from them, we were fine without formal documentation.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:2045


11/23/2019 6:57 AM  
Posted By NpS on 11/22/2019 11:43 PM
lets say that A dies the day after she makes B her proxy for the annual meeting vote. On the day that A dies, she is no longer the owner - Her estate is the owner. Technically, the proxy is no longer valid.


I disagree. For example:

From Connecticut statute 47-252 – Voting. Proxies. Ballots:
... (5) Except as otherwise provided in the declaration or bylaws, a ballot is not revoked after delivery to the association by death or disability or attempted revocation by the person that cast that vote;

From Connecticut statute 33-706 Proxies:
... (e) The death or incapacity of the shareholder appointing a proxy does not affect the right of the corporation to accept the proxy’s authority unless notice of the death or incapacity is received by the secretary or other officer or agent authorized to tabulate votes before the proxy exercises his authority under the appointment.

From California Corporations Code 7613 Proxies:
... (c) A proxy is not revoked by the death or incapacity of the maker or the termination of a membership as a result thereof unless, before the vote is counted, written notice of such death or incapacity is received by the corporation.

From Alaska Statute 10.06.418 Proxies:
... (c) A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted, written notice of the death or incapacity is received by the corporation.

From Ohio Statute 1701.48 Voting by proxy:
... (E) A revocable appointment of a proxy is not revoked by the death or incompetency of the maker unless, before the vote is taken or the authority granted is otherwise exercised, written notice of the death or incompetency of the maker is received by the corporation from the executor or administrator of the estate of the maker or from the fiduciary having control of the shares in respect of which the proxy was appointed.

Where "written notice of death" is required, I think the person providing the written notice of death, and the written notice itself, needs to have proper authority. E.g. in a contentious election, Neighbor X seeks to invalidate A's proxy. Neighbor X provides an obituary from the local paper alleging A has died. I do not think this is legally enough. Neighbor X has no actual knowledge (like an original copy of the death certificate) that A is dead. If it is a contentious election, the board had better dot all i's and cross all t's in its decision-making on proxies. Consultation with a HOA attorney might be advisable.

(Here's to a long and likely academic answer. Still, maybe it will help someone in the future.)
NpS
(Pennsylvania)

Posts:3910


11/23/2019 7:44 AM  
Thanks Augustin. My state PA looks similar to CA.

Looking at CA's statute - Written notice that a person died is all that is needed to invalidate a proxy. That's really vague.

Let's say that neighbor C sends an email to the HOA stating that A died. C doesn't have to be related to A. C doesn't have to know who the Executor is. C doesn't have to provide a death certificate. C's email would IMO satisfy the statute as being written notice that A died.

Now let's say that C was wrong - A was removed from her home but is only close to death.

Now let's say that the HOA relies on what C wrote even though C's email was wrong.

As I read the CA statute, the HOA would be within its rights under the statute to reject A's proxy under these particular circumstances. I'm not saying that the HOA should reject A's proxy. I am saying if the HOA rejected A's proxy, I believe that the HOA would be protected under the statute.

To sum it all up - as I said before - everything is incredibly fact specific. Statutes like these may be subject to interpretation. There may be case law that adds flavor. But ultimately, these things can get very messy to deal with. So glad that we never had to deal with a proxy challenge on a controversial issue. Hope we never do.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:2045


11/23/2019 9:02 AM  
In the hypothetical you propose, if an appeals court ruled in favor of the HOA, then subsequently in contentious elections the appeal court's ruling would give dishonest HOA members free rein to send emails to the Board lying (knowingly or not; maliciiously or not) about the death of members who submitted proxies. Barring more effort by the HOA before the vote is counted, I respectfully disagree that a HOA would be within its rights to reject the proxy in your hypothetical.

What should a HOA do in a contentious election where there is a neighbor C who emailed the HOA secretary and board that A has died before the vote is counted? I agree one has to treat these situations on a case-by-case basis and even then, often the HOA and a court just do the best they can. For now, I'd just say the HOA should make more effort to make sure the outcome of the election reflects the membership's desires.
NpS
(Pennsylvania)

Posts:3910


11/23/2019 11:34 AM  
Posted By AugustinD on 11/23/2019 9:02 AM
In the hypothetical you propose, if an appeals court ruled in favor of the HOA, then subsequently in contentious elections the appeal court's ruling would give dishonest HOA members free rein to send emails to the Board lying (knowingly or not; maliciiously or not) about the death of members who submitted proxies. Barring more effort by the HOA before the vote is counted, I respectfully disagree that a HOA would be within its rights to reject the proxy in your hypothetical.

What should a HOA do in a contentious election where there is a neighbor C who emailed the HOA secretary and board that A has died before the vote is counted? I agree one has to treat these situations on a case-by-case basis and even then, often the HOA and a court just do the best they can. For now, I'd just say the HOA should make more effort to make sure the outcome of the election reflects the membership's desires.


I believe that you are overthinking things.

Consider the following:

1. These statutes are for all corporations, not just HOAs. In a general corporation, 1 person can own more than 50% of the stock, and the vote can be on all kinds of activities and expenditures that an HOA would never even consider. A single proxy could have a tremendous impact on the outcome of the vote. HOAs don't have that kind of potential exposure.

2. The way it's written, the CA statute looks like a Safe Harbor statute. The essence of a Safe Harbor statute is - As long as you do X, you can't be sued for Y. As applied to an HOA setting, the statute would not protect the BOD if oral notice was received - but would protect the BOD that got written notice. Receipt of written notice gets the BOD off the hook. If the legislature wanted stiffer requirements, they would have put other words in the statute. But in CA, they didn't.

3. The whole design of the statute is to protect the corporation and its Directors from being sued. I don't think a trial judge would find against the BOD - because the BOD satisfied the exact language of the Safe Harbor statute. And I don't think anyone would be willing to spend the time and money to appeal such a decision. So I don't think the issue would ever reach an appellate court.

The hypothetical I created was intentionally absurd. I used it to make a point about the vagueness of the wording in the statute. But I don't think it would ever happen in real life.

Sikubali jukumu. Read all posts at your own risk.
AugustinD


Posts:2045


11/23/2019 12:05 PM  
By your interpretation, couldn't one mischief-making HOA member write the HOA board with a list of owners who assigned proxies (with said people serving as proxies being against the mischief-maker's goals in the election) and declare that this is his official "written notice" that the people on this list are dead? Subsequently why wouldn't a rogue board, having the same goals as the mischief maker, seize on your so-called "safe harbor" statute and throw the election?

It seems to me that the discussion is now much less academic.
NpS
(Pennsylvania)

Posts:3910


11/23/2019 12:33 PM  
Posted By AugustinD on 11/23/2019 12:05 PM
By your interpretation, couldn't one mischief-making HOA member write the HOA board with a list of owners who assigned proxies (with said people serving as proxies being against the mischief-maker's goals in the election) and declare that this is his official "written notice" that the people on this list are dead? Subsequently why wouldn't a rogue board, having the same goals as the mischief maker, seize on your so-called "safe harbor" statute and throw the election?

It seems to me that the discussion is now much less academic.


Safe Harbors are not absolute. There are inherent expectations of Good Faith. Manipulative behavior would not comply with good faith expectations.

It's somewhat similar to the Business Judgment rule. BOD members are fiduciaries. The presumption is that they are acting in good faith. Ordinarily, they win. But if someone can prove that they did not act in good faith, the BOD loses the protection of the BJR. -- The presumption shifts from favorable-to-the-BOD to favorable-to-the-challenger.

Once again, all about the details.

BTW, nice job on collecting all those statutes.


Sikubali jukumu. Read all posts at your own risk.
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