Proxy forcing yes vote - legal???

Started by SarahL • 10 replies • 2212 views

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SarahL (Florida)
Posts: 1

Posted:

Hi, I live in a small community of approx 80 homes and a vote is due on Monday to approve or reject new Cc&Rs. The wording of the proxy form indicates that if you use your proxy and obviously therefore cannot attend, then when the proxy form is submitted by the holder, the form will be automatically treated a yes vote of approval. There is no provision on the form to indicate your vote, just the usual assignment of voting rights space for the name, and a date and sign box, but it specifically states that "the undersigned hereby approve and consent". There is 'lno 'does not approve' alternative type of statement and associated signature box. I am presuming that this is not legal as all voters, whether present or proxy or absentee voting, must be given the right to vote for or against. I am npt a native Floridian and am unfamiliar with the Statutes, so would appreciate any thoughts.
Many thanks.

LauraR5 (Tennessee)
Posts: 220

Posted:

I would guess if you vote no you just do not return your proxy. Makes sense to me, because if they don't have enough votes they can't change the CC&Rs anyhow.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

for most CCRs a certain percentage of the TOTAL membership is required to vote yes for any changes

therefor, if you do not AFFIRMATIVELY vote YES you would be counted as a NO

eg. (my hoa)

126 members
2/3 required for change = 85 yes votes

93 people vote ~ still require 85 yes votes ~ need to count

84 people vote ~ no need to count

an abstention counts as a NO

therefor, as stated by another poster, if you wish to vote no and can not attend ~ simply do not vote

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By SarahL on 01/08/2013 2:20 PM
Hi, I live in a small community of approx 80 homes and a vote is due on Monday to approve or reject new Cc&Rs. The wording of the proxy form indicates that if you use your proxy and obviously therefore cannot attend, then when the proxy form is submitted by the holder, the form will be automatically treated a yes vote of approval. There is no provision on the form to indicate your vote, just the usual assignment of voting rights space for the name, and a date and sign box, but it specifically states that "the undersigned hereby approve and consent". There is 'lno 'does not approve' alternative type of statement and associated signature box. I am presuming that this is not legal as all voters, whether present or proxy or absentee voting, must be given the right to vote for or against. I am npt a native Floridian and am unfamiliar with the Statutes, so would appreciate any thoughts.
Many thanks.

A proxy is a form of power of attorney to authorize someone to vote as your representative. There is a directed proxy and an undirected proxy. In an undirected proxy, you authorize the proxy holder (your representative) to vote any way he or she wishes. In this case, it appears that you would be authorizing an undirected proxy and you are being told beforehand that the proxy will vote in the affirmative. That is indeed fortunate because it is telling you whether or not you should return your proxy.

Usually, a vote to amend/change the CCRs requires an affirmative vote of a specified percentage of all the homeowners entitled to vote. So, in this situation, if you are in favor of the changes, return your proxy. If you are not in favor of the changes, do not return the proxy. Simply throw it away.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Sarah

You say:

Hi, I live in a small community of approx 80 homes and a vote is due on Monday to approve or reject new Cc&Rs. The wording of the proxy form indicates that if you use your proxy and obviously therefore cannot attend

Even when a proxy is submitted, one can override such with a later dated proxy or attending in person and overriding their already signed proxy./b>

then when the proxy form is submitted by the holder, the form will be automatically treated a yes vote of approval. There is no provision on the form to indicate your vote, just the usual assignment of voting rights space for the name, and a date and sign box, but it specifically states that "the undersigned hereby approve and consent". There is 'lno 'does not approve' alternative type of statement and associated signature box. I am presuming that this is not legal as all voters, whether present or proxy or absentee voting, must be given the right to vote for or against

This or most any proxy wording is allowed. Some say if not even returned it is a so and so vote. This is simply the proxy writer, writing the proxy in their favor. A procedure used all the time. How many general election ballots have you seen where a Yes vote measnt were not in favor of such or a No vote meant you were in favor of such? Happens all the time.

Never ask a question unless you know the answer. Do you still beat your spouse? Yes or No....LOL

I am npt a native Floridian and am unfamiliar with the Statutes, so would appreciate any thoughts.
Many thanks.

LarryB13 (Arizona)
Posts: 4,099

Posted:

What do your current CC&R's say about amending them?

Most that I have seen require a certain percentage of owners to sign the amendment and then record it. I have never read one yet that permitted amending by taking a vote.

I know Florida law is a bit screwy so this may be legal but if I were there I would want to see scripture, line, and verse of the authority for amending the covenants this way.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

When we changed our CC&R's we had an issue with a requirement of having a "Special meeting" to do so. The vote for updates/modification of our CC&R's could only be done by gathering 90% of the owners at a special meeting. Could you imagine trying to get 90% of the membership to show up at one place at the same time? NOT possible if you can't even get 10 members to attend a regular meeting. Plus considering those who use their houses as rentals and don't live in the area has to factor in.

So our option was to have an additional form/petition that allowed the members to give up their rights to attend that special meeting. That way we could collect signatures at any time we could. Plus we had the actual voting form for the changes to sign as well.

I wonder if this could be what you are referencing? They may have you all giving up your rights to a special meeting requirement in order to cast your vote more freely. I can't really tell by your posting. Just letting you know that this may be a factor.

Former HOA President

KevinK7 (Florida)
Posts: 1,343

Posted:

Couple questions.

What do your covenants and restrictions say about amending them?

Is your HOA voluntary or mandatory?

What is the covenant and what is the amendment in question?

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By LarryB13 on 01/08/2013 6:29 PM
Most that I have seen require a certain percentage of owners to sign the amendment and then record it. I have never read one yet that permitted amending by taking a vote.

Larry,

Just as a FYI, our Declaration can be amended by a vote. The Declaration is largely based on Connecticut's CIOA and uses a lot of the same wording. From the CIOA, in part:

"Sec. 47-236. Amendment of declaration or bylaws. (a) Except in cases of amendments that may be executed by a declarant under subsection (f) of section 47-228 or section 47-229, or by the association under section 47-206, subsection (d) of section 47-225, subsection (c) of section 47-227, subsection (a) of section 47-231 or section 47-232, or by certain unit owners under subsection (b) of section 47-227, subsection (a) of section 47-231, subsection (b) of section 47-232, subsection (b) of section 47-237 or section 47-242, and except as limited by subsections (d) and (f) of this section, the declaration, including any surveys and plans, may be amended only as follows:

(1) By vote or agreement of unit owners of units to which at least sixty-seven per cent of the votes in the association are allocated, unless the declaration specifies either a larger percentage or a smaller percentage, but not less than a majority, for all amendments or for specific subjects of amendment;"

GlenL (Ohio)
Posts: 5,491

Posted:

However you do it by signed petition or by ballot, these should be kept forever for you can bet the moment they are disposed of is the moment you will need to prove the vote was valid.

Studies show that 5 out of 4 people have problems with fractions

BruceF1 (Connecticut)
Posts: 2,535

Posted:

Quote:

Posted By GlenL on 01/09/2013 2:53 AM
However you do it by signed petition or by ballot, these should be kept forever for you can bet the moment they are disposed of is the moment you will need to prove the vote was valid.

Yes, and the statute further requires that the amendment(s) be recorded. I didn't post that part. The statute is actually rather complicated and lengthy.

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