How does a proxy have to be registered? > HOA Forum

Unanswered

Active Topics

Forums

Forums > Homeowner Association > HOA Discussions

Subject: How does a proxy have to be registered?

Prev Next

You are not authorized to post a reply.

Page 1 of 4

Author

Messages

KarlA1
(Florida)

Posts:62

06/07/2009 2:46 PM
Hi, I live in a community called Woodlake Villas in Coconut Creek Florida. We have elections next week and there are a few things that concern me very much. First of all we have a person running for the board who is not only way behind in his assessments, but also a continues violator of our rules and regulations as provided by our governing documents. My question is ... when does a proxy have to be registered. Our By-Laws are very vague about this. Here is the section out of our By-Laws: D) Votes may be cast in person or by proxy. Proxies shall be valid only for the particular meeting designated thereon and must be filed with the Secretary before the appointed time of the meeting. Now in my opinion this means that if our meeting starts at 7:00pm the proxies have to be registered with the secretary before 7:00pm. I also have problems with people running around 10 minutes before the meeting, collecting proxies from homeowners who have no interest in the community. Then they come with 30 proxies to the meeting (we have 75 Units in our community). I would also like to know if you can run for the board if your assessments are not up to date. That person who is running for the board is about $800.00 behind on his payments and has received about 5 violation letters in the last 3 to 4 weeks. Is there a legal way to prevent him from running? Thank you in advance for you suggestions. Cheers Karl Artner

Cheers Karl

MaryA1

Posts:0

06/07/2009 3:36 PM
Karl, The answer to your questions about the member who is in violation of the CCR and behind in paying his assessments should be found in your CCRs. Most will state that a member not in good standing (delinquent and in violation) cannot use the amenities nor exercise his right to vote and perhaps even state he cannot hold a position on the board. Check your gov docs for this. IMO, he should definitely NOT be a candidate for the Board. I hope the BOD is going after him for the delinquencies and he's being fined for the multiple violations. The notice of the annual meeting should state the deadline for submitting proxies to the Secretary. If it doesn't then I would say as long as she gets them b/4 the meeting begins they should be valid. You seem to think it's not right for a member to "run around. . .collecting proxies". If your bylaws state proxies can be used then any member has a right to collect as many as he can. You can do the same thing these people you speak of are doing. I've heard others complain about this and could never understand why, when every member has the same rights regarding proxies and how many they can collect.

EvaM1
(Florida)

Posts:190

06/07/2009 3:53 PM
Karl, here I may disagree with Mary just a tiny bid. Unfortunately, the State law F.S.720. 306 (9) state that any body can run for the board and he can nominate himself as well. Even if you are in jail you can run for the Board. But, your by-laws should have some text stating that ’No member shall be allowed to exercise his vote or serve as a director unless he is current on all assessments. It may be under ‘Voting’ or ‘Directors’. Our By-laws also say: 'Votes can be cast in person or by proxy.' BUT there is an exception when it comes to voting for Directors . Section: ‘Directors': 1. ‘Election of Directors shall be held at the annual meeting. 2. A nominating committee… 3. The election shall be by ballot (unless dispensed with by unanimous consent)…. I know some Florida Association allow proxy voting for directors, but again many don't. Please check again, may be you will find more info in your by-laws.

EvaM1
(Florida)

Posts:190

06/07/2009 4:48 PM
Mary, I do not understand proxies. Not sure why I have such a problem with this issue. I read that ‘general proxies’ cannot be used for voting for the Board members and then I read Florida law 'may' allow it, so please check your by-laws and when you do, the by-laws don’t say much. The F.S. 320 is really bad, bad, bad. I think. And there are other problems with proxies as you probably well know. Many condos are now limiting the number of proxies one person can hold to five or less. Oh well, enough said

KarlA1
(Florida)

Posts:62

06/07/2009 6:00 PM
Eva and Mary: I thank you very much for your opinion and advice. I definitely will study our governing docs a little more regarding this matter. I do no that we have something in our documents that states that you can do certain things and only have certain rights if you are a member in good standing. Again, I will have to do a more detailed research. At least I have something to continue with and I hope that by Tuesday I will have enough in my hands to stop those ridiculous attempts by some of those disrespectful member to undermine the Board who I have to say is really working hard on changing our community to the better. At least some of them. Thanks Again. Cheers Karl Artner

Cheers Karl

AnnJ1
(Florida)

Posts:107

06/07/2009 6:25 PM
Hi Karl, Is your association and your form of ownership structured as a condominium? I mention this because we are a condo association and have villas. If so, you would be bound by the FL statutes, Chapter 718. Below are snippets from the statutes.... 1st of all, Chapter 718 only recognises two kinds of proxies... 1.) General and 2.) limited (which some people call "specific"). Regarding the use of proxies at a general membership meeting: (b) Quorum; voting requirements; proxies.-- 2. Except as specifically otherwise provided herein, after January 1, 1992, unit owners may not vote by general proxy, but may vote by limited proxies substantially conforming to a limited proxy form adopted by the division. Limited proxies and general proxies may be used to establish a quorum. Limited proxies shall be used for votes taken to waive or reduce reserves in accordance with subparagraph (f)2.; for votes taken to waive the financial reporting requirements of s. 718.111(13); for votes taken to amend the declaration pursuant to s. 718.110; for votes taken to amend the articles of incorporation or bylaws pursuant to this section; and for any other matter for which this chapter requires or permits a vote of the unit owners. Except as provided in paragraph (d), after January 1, 1992, no proxy, limited or general, shall be used in the election of board members. General proxies may be used for other matters for which limited proxies are not required, and may also be used in voting for nonsubstantive changes to items for which a limited proxy is required and given. Notwithstanding the provisions of this subparagraph, unit owners may vote in person at unit owner meetings. Regarding assessment delinquencies of directors: (d) Unit owner meetings.-- A person who has been suspended or removed by the division under this chapter, or who is delinquent in the payment of any fee or assessment as provided in paragraph (n), is not eligible for board membership. A person who has been convicted of any felony in this state or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction that would be considered a felony if committed in this state, is not eligible for board membership (n) Director or officer delinquencies.--A director or officer more than 90 days delinquent in the payment of regular assessments shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law. Hope this helps.... Ann

KarlA1
(Florida)

Posts:62

06/07/2009 7:05 PM
Hi Ann: thanks for your reply. We are an HOA and governed by Chapter 720 Homeowners' Associations. Chapter 718 does not apply to us. But thank you very much for trying to help, I appreciate your time very much. Cheers Karl Artner

Cheers Karl

EvaM1
(Florida)

Posts:190

06/07/2009 7:20 PM
(b) Quorum; voting requirements; proxies.-- after January 1, 1992, NO proxy, limited or general, shall be used in the election of board members. __ AnnaJ , the section above truly does not apply to the election of board members. I was just reading the condo law and only secret ballots can be used. Karl ought to find out if pproxies can be used for the election of board members in his HOA. It would be quite unusual, but possible.

KarlA1
(Florida)

Posts:62

06/07/2009 7:51 PM
Eva, what chapter die you copy this section from? If this is true and if this applies to Homeowners' Association governed by F.S. Chapter 720, then I can shut down those no-good-none-paying members once and forever.

Cheers Karl

KarlA1
(Florida)

Posts:62

06/07/2009 7:55 PM
Sorry Eva, just realized that's from 718. From the section Ann posted.

Cheers Karl

AnnJ1
(Florida)

Posts:107

06/07/2009 8:01 PM
Hi Eva, You and I are saying the same thing...I think! Yes, a proxy cannot be used in the elections of directors.... a secret ballot is used. Am I misunderstanding what you are saying? I'm attaching the FL Condo Election Brochure for you. I think you might enjoy reading it. Ann
Attachment: 1671117371.pdf

EvaM1
(Florida)

Posts:190

06/07/2009 8:28 PM
Karl, 1. The Articles of Incorporation for non-profits (Chapter 617) describes the voting procedures for the Board members. 2. The spin-off is in the Association by-laws. Please just check the By-laws for now. 3. The by-laws must say how to vote for the Board members. 4. Your first statement, that votes ‘can be in person or by proxy’, most likely does not apply to the election process. That statement applies to voting on general issues. 5. There must be something else in your by-laws stating When-Where-How the Directors are appointed. In our By-laws it is under the Article III: Directors. Your Article title may be different. 6. If there is absolutely nothing on election of officers then Articles of Incorporation prevail. But I doubt that is happening. I also doubt – but it is possible – that you can elect directors by using proxies. 7. F.S. Statute Chapter 720 just says ‘that all members must be eligible to serve on the Board of Directors.’ Nothing more. And that prevails.You can not stop any member from running for the board. 8. But again, the By-laws should define who –once elected – cannot serve on the Board or vote, or something. So, even if this guy is elected and he is late on his assessments, he may have to resign, unless he pays up one day before the election. Possible, right? All that will really depend on the Treasurer, you know. I think your best approach is to make sure the votes are legal. And, this is why you first have to find out if proxies can be used.

EvaM1
(Florida)

Posts:190

06/07/2009 8:41 PM
Ann, thank you much for the brochure. I truly appreciate it. Gave me an idea that we ought to issue a small brochure - a guideline - as well. I do have a question if I can. Let's assume you are an absentee owner. And, you do not want to attach a proxy to this ballot, because you do not want to give anyone the power of attorney to vote on any other issues, your ballot is still valid, right? Or, am I wrong?

KarlA1
(Florida)

Posts:62

06/07/2009 9:23 PM
Ann and Eva: You guys are saying all the time that a proxy cannot be used in the election of officers, but where does it say that? I read through Chapter 720, and I couldn't find anything like that. We are not a Condominium We are governed by Chapter 720 Homeowners' Associations.

Cheers Karl

EvaM1
(Florida)

Posts:190

06/08/2009 7:23 AM
Oh Karl, Please read my post of 4:27 am. I know you are HOA. So, are we.

MaryA1

Posts:0

06/08/2009 7:29 AM
Karl, Copied below is the applicable statute from the FL HOA statutes. As you can see proxies are allowed. 720.306(8) PROXY VOTING.--The members have the right, unless otherwise provided in this subsection or in the governing documents, to vote in person or by proxy. To be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy. A proxy is effective only for the specific meeting for which it was originally given, as the meeting may lawfully be adjourned and reconvened from time to time, and automatically expires 90 days after the date of the meeting for which it was originally given. A proxy is revocable at any time at the pleasure of the person who executes it. If the proxy form expressly so provides, any proxy holder may appoint, in writing, a substitute to act in his or her place.

MaryA1

Posts:0

06/08/2009 7:36 AM
Eva, You said: " The Articles of Incorporation for non-profits (Chapter 617) describes the voting procedures for the Board members." I took a look at Chapt 617 and the section on "articles of inc" which only addresses what should be contained in the articles. There is a section pertaining to voting powers and rights but what is contained therein is only what should be in each individual HOAs articles of inc. Frankly, I think the FL nonprofit corp statutes are a joke! When bylaws state "votes may be cast in person or by proxy", it generally refers to votes being cast in any election, unless stated otherwise.

AnnJ1
(Florida)

Posts:107

06/08/2009 9:01 AM
Hi Eva, Sorry I missed your post last night... went to bed early! Yes, your ballot is still valid if you don't submit a POA to vote on any other issues. In our annual notice to meeting, we send out a "limited" proxy so as to secure a quorum. Along with this proxy, we mail the election ballot. Karl... the above applies to Chapter 718... I don't want to confuse you. Attached is an article from the law firm of Becker & Poliokoff and it addresses some of the differences between chapter 720 and 718 in regards to the election processes. Ann
Attachment: 16815920071.pdf

EvaM1
(Florida)

Posts:190

06/08/2009 9:53 AM
Mary, I agree, this is quite confusing. Please let me. Proxy voting is allowed in Florida for both HOAs and Condos. Note Ann’s post re the condo act. The condos vote by proxies, but proxies are NOT allowed when electing officers. So, the Condo Act is quite specific about elections and they allow mail-in ballots HOA Chapter 720 is silent. Both, the Articles 617 and Chapter 720 say go to the By-laws! 720. 303 ‘Directors may not vote by proxy or by secret ballot at board meetings, except that secret ballots may be used in the election of officers.’ 617.0721 Voting by members.—(2) If directors or officers are to be elected by members, the bylaws may provide that such elections may be conducted by mail. (This is important.) I just do not know how one would vote in elections if it is not specified in the By-laws? Do you? The section Karl cites does not say anything about elections. The section you describe allows proxy votes. Still no info by Karl on electing directors, i.e. Nominating committee, Notice of Meeting, voting procedures, etc. Our HOA votes by proxies as well. But when it comes to the election secret ballots are used. Article: ‘Directors': 1. ‘Election of Directors shall be held at the annual meeting. 2. A nominating committee… 3. The election SHALL be by ballot (unless dispensed with by unanimous consent)…. The problem here is that our by-laws do not say mail-in ballot can be used. (And, Articles say the mail-in ballots may be permitted by By-laws.) So, if an absentee owner votes by ballot a proxy must be attached otherwise that vote is invalid, correct?

EvaM1
(Florida)

Posts:190

06/08/2009 10:24 AM
Yes, your ballot is still valid if you don't submit a POA to vote on any other issues. In our annual notice to meeting, we send out a "limited" proxy so as to secure a quorum. Along with this proxy, we mail the election ballot. Ann __ Ann, thank you again. I like Joe Adams a lot. The problem he is describing is so typical of HOAs. The legislation in Tallahassee worries more if the Board reads the Governing documents instead of addressing the voting issues. I will try to propose an amendment to allow secret mail-in ballots for elections (no proxies required). I have a few more questions, if I may: 1. Does your 'limited' proxy say that it can be used only for securing a quorum or does it give a proxy holder a power to vote on some general issues. 2. Who gets the proxy with the ballot? The proxy holder or the Secy? 3. How do you vote on funding reserves and amendments? Secret or signed ballots?

MaryA1

Posts:0

06/08/2009 10:43 AM
Eva. IMO, mail-in ballots (whether secret or not) override proxies. If you mail in a ballot you are voting, ergo no proxy needed. You have quoted from Chapt. 617.0721 (2), the subsection addressing the use of proxies; however that subsection does not apply to HOAs. See subsection (6) which says subsection (1), (2) - the proxy subsection, (4) & (5) do not apply to HOAs. You've quoted from Chapt. 720.303 but that section only pertains to board members voting for directors. From the research that I've done, here's what I found: Chapt 617 - nonprofit corps. 617.0721(2) states a member may vote in person or by proxy. However, that subsection does not apply to HOAs as stated in subsection (6). Therefore the nonprofit corp statutes are useless regarding this isue. Chapt 718 - condos. 718.112(2)(d)3 states proxies cannot be used to elect board members. Chapt 720 - HOAs. 720.306(8) states proxies can be used; says nothing about mail-in ballots. Both Chapt 720 and Chapt 617 defer to the gov docs or the articles of inc and bylaws. Chapt 718.112(2) Required Provisions states: "The bylaws shall provide for the following and, if they do not do so, shall be deemed to include the following. Therefore what is written in subsection (2)(d)3 prevails.

AnnJ1
(Florida)

Posts:107

06/08/2009 12:00 PM
Eva, In answer to your questions: 1.) Our "limited" proxy is used for a quorum and non-substantive matters that may come up for a vote... i.e. approval of minutes, lay on the table, adjournment etc etc. Our proxy language is: Limited Proxy Instructions This Limited Proxy can be used for the purpose of reaching a quorum to conduct the Association's Annual Meeting. It must be completed and filed with the Secretary of the Association, or the Manager. If you have any doubt about attending the meeting, this proxy will be used to obtain a quorum at the Annual Meeting and to vote on any non-substantive matters that may require a vote at the meeting. Note: Should you NOT have submitted your Certificate of Appointment of Voting Representation, please complete same if your property is deeded to more than one person. The certificate may be returned in the PROXY return envelope along with your proxy. LIMITED PROXY XXXXXXXXXXXXXXXX Condominium Association, Inc. The undersigned hereby appoints ___________________________ as my proxy, for the establishment of a quorum and for all non-substantive matters to come before the meeting of the above Association or any adjournment thereof, according to condominium documents and the Florida statutes, to be held: Date: Wednesday, December 3, 2007 Time: 7:00 PM Location: 10311 Club Circle - The Clubhouse NOTE: Should you fail to designate a specific proxy holder above, it will be presumed that you wish the Secretary of the Association to serve as your proxy holder. I hereby certify that I am the person authorized to execute this Proxy for and on behalf of the owner(s) of the aforesaid unit. The undersigned ratify and confirms any and all acts and things that the limited proxy may do is for the above mentioned whether at the meeting referred to above or at any change, adjournment, or continuation of it, and revoke all prior proxies previously executed. Dated: ____________________ _______________________________________________________ Unit # Unit Address _______________________________________________________ Designated Voter - Print Name _______________________________________________________ Signature of Designated Voter of Unit (In no event shall this limited proxy be valid for a period of longer than 90 days after the date of the first meeting for which it is given) ......................................................................... 2.) The proxy is mailed to our official address (clubhouse) in a specific envelope labeled "proxy". The ballot is also mailed to our clubhouse in it's specific envelope labeled "ballot". 3.) We fully fund our reserves (by declarations) and this matter is considered at a special budget meeting of the BOD. A copy of the proposed budget is mailed to the members prior to the BOD meeting and there is ample time for the members to react. So far, our community has fully supported the full funding and in fact, highly encourages it. Ain't that sweet?? Our declarations do provide for a special called meeting of the general membership should the members wish to fund less than 100% or, in fact, want no funding. Ann PS... I think we have hijacked this thread and probably should start a new thread, agree? I'm happy to share our procedures with you or anyone interested.

EvaM1
(Florida)

Posts:190

06/08/2009 12:16 PM
Ann, thank you. This helps a lot. Yes, you are very lucky. Supporting 'full funding' is a sensitive subject in our community. And, yes we ought to start a separate tread. Thanks again.

EvaM1
(Florida)

Posts:190

06/08/2009 2:06 PM
Mary, Thank you. I just was not sure if the definition of ‘mail-in ballot’ was the same as ‘absentee ballot’. (It is like trying to define invitee vs guest) Now I know they are the same. Both you and Ann have confirmed that. 'You have quoted from Chapt. 617.0721 (2), .. however that subsection does not apply to HOAs. …” Mary Wow, I made a huge mistake. Thanks! ’Chapt 720 - HOAs. 720.306(8) states proxies can be used; says nothing about mail-in ballots.’ Mary Agree, it does not say anything about mail-in ballots. But, what is your point here? Here is what it says: ‘720.306 (8) The members have the right, unless otherwise provided in this subsection or in the Governing Documents, to vote in person or by proxy.’ If our by-laws say we will use ‘mail-in ballots’ then we are not in conflict with the above provision and our by-laws will stand. True?

MaryA1

Posts:0

06/08/2009 2:22 PM
Eva, I only mentioned mail-in ballots because you said this: "So, the Condo Act is quite specific about elections and they allow mail-in ballots". If mail-in ballots are specified in your gov docs then you can use them, if not then you can't because they are not specified in the statute.

EvaM1
(Florida)

Posts:190

06/08/2009 2:32 PM
Mary, we agree, life has meaning again:-) Thanks.

KarlA1
(Florida)

Posts:62

06/08/2009 4:10 PM
Wow ... I am impressed by all the comments here ... ;-) Ann, Eva and Mary, I wanna thank you all very much for your input. I did read Chapter 617 as well as our Articles of Inc. and our Bylaws, nothing really defines how proxies have to be registered and what exactly needs to be done. The only passage I found in the Bylaws was following: D) Votes may be cast in person or by proxy. Proxies shall be valid only for the particular meeting designated thereon and must be filed with the Secretary before the appointed time of the meeting. Other than that all other governing docs are silent about proxies and unfortunately Chapter 617 always references back to the Bylaws. Basically an HOA can make up their own procedures when it comes to voting, because the F.S. don't give you any guide lines. Now ... I would like to know how you guys interpret the above passage from our Bylaws. Once I have your interpretations, I will let you know what I think it means. My question regarding this passage. If you read this section D) in our Bylaws, when would you say the proxy has to be registered with the Secretary to be valid and what is the definition of "registering with the Secretary". Our meetings start at 7:00pm ... just so you know. Thanks again Karl Artner

Cheers Karl

MaryA1

Posts:0

06/08/2009 4:17 PM
Karl, As I stated earlier, IMO, the meeting notice should state to whom the proxies should be mailed or given and by what date and/or time. However, if it is not stated in the notice, I would think as long as they are given to the Sec b/4 the meeting they should be valid. The reason for requiring the Sec to receive the proxies is so she can make certain the person giving the proxy and the proxy holder are both eligible to vote. Also, the secretary must make certain the proxy holder recieves a ballot and that more than one ballot is not cast for any one lot.

EvaM1
(Florida)

Posts:190

06/08/2009 4:26 PM
Karl, truly something is missing and we are not communicating. If I can ask, could you send us headings of all articles in your By-laws? It shoud be something like this: Article I: Identity Article II.Member's Meeting Article III: Directors Article IV: Powers and Duties of the the Board. Article Vfficers Article VI: Fiscal Mamangemnt etc..

KarlA1
(Florida)

Posts:62

06/08/2009 6:51 PM
Mary, As far as the holder of the proxy goes? Who can be the holder of a proxy? Anybody the homeowner chooses? Or only another homeowner of the community? Eva, here are the headers from our Bylaws: 1. IDENTITY 2. MEMBERSHIP, VOTING, QUORUM, PROXIES 3. ANNUAL AND SPECIAL MEETINGS OF MEMBERSHIP 4. BOARD OF DIRECTORS 5. Officers 6. ASSESSMENTS Does that look OK to you?

Cheers Karl

You are not authorized to post a reply.

Page 1 of 4

Forums > Homeowner Association > HOA Discussions > How does a proxy have to be registered?