Can a proxy and/or a power of attorney be used for a nonmember to talk at a board mtg in NY?

Started by AliceM3 • 8 replies • 1413 views

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AliceM3 (New York)
Posts: 3

Posted:

I am unable to attend board meetings because of my health. I gave a proxy to my husband so he could go in my place. The membership is in my name only for estate planning purposes. For two mtgs it was fine. Then the board decided they would no longer allow him to even attend a mtg. They interpreted the bylaw about proxies to only apply to the annual meeting. New York State law says that "every member entitled to vote at a meeting of members or to express consent or dissent without a meeting may authorize another person or persons to act for him by proxy." Would that mean that my proxy should be honored?

SheliaH (Indiana)
Posts: 6,964

Posted:

If you want an answer to a legal question, it's best that you go to a private attorney, but for what it's worth, the second part of the statute you quoted "or to express consent or dissent without a meeting" looks to mean he is allowed to contact the board on your behalf. That doesn't require a meeting - he can do that by sending a letter or making a phone call.

You may also want to check your documents - since association meetings are intended for members (homeowners), non-members, such as tenants, don't necessarily have permission to attend. Some associations will allow it if the person or persons are invited in advance, others require permission from the owner, and a few (like mine), allow some visitors (usually tenants) to speak during the resident forum, but after that, they're expected to leave.

Personally, I think your board is being unreasonable - homeowners don't vote at regular meetings anyway, so what's wrong with allowing him to listen to the proceedings and report back to you as to what's going on, especially if health issues keep you from attending? If you can, you might try to send a letter to the board explaining your situation and ask them to consult the association attorney for an interpretation because this stance could affect other homeowners, such as those with adult children who might want to attend on their parents' behalf.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By AliceM3 on 06/01/2017 5:27 PM
I am unable to attend board meetings because of my health. I gave a proxy to my husband so he could go in my place. The membership is in my name only for estate planning purposes. For two mtgs it was fine. Then the board decided they would no longer allow him to even attend a mtg. They interpreted the bylaw about proxies to only apply to the annual meeting. New York State law says that "every member entitled to vote at a meeting of members or to express consent or dissent without a meeting may authorize another person or persons to act for him by proxy." Would that mean that my proxy should be honored?

You could potentially have a Free or Low Cost Consultation with an attorney regarding your State Laws for such a quick question. In most states I have lived if you give a proxy to an individual then they can represent you in ALL meetings for the period of time the proxy allows. I would think that is pretty well common in most states.

RichardP13 (California)
Posts: 3,868

Posted:

You would actually need an power of attorney for the husband or possibly a quitclaim onto title of the property. Again, no assurance that a Board, such as yours would accept such documents.

GwenG (Florida)
Posts: 669

Posted:

I read about this issue and understood that the power of attorney law had changed. The power of attorney can no longer be general; it must be specific as to the action the agent can take on behalf of the person giving it. Therefore, one must present the board with a POA that states specifically..."(name) has the authority to attend all meetings open to owners, vote at those meetings on any matter, speak to designated items on the agenda, etc...on my behalf from (current date) to (future date). That is the idea but not the language. You can probably find a template on the internet to conform to your situation.

The attorney for HOA denied OP's husband a proxy to vote at other than a "members meeting" which it narrowly construed as an Annual Meeting, one of the purposes of which is to elect officers, ratify ballot propositions and adopt proposed budgets. If a proxy is permitted to do this by proxy, I do not understand why simple attendance at meetings would be a problem.

Richard, what possible objection would a board assert to refuse a properly-executed POA by an agent for a owner unable to attend meetings--even without a proxy to vote (which rarely occurs at a regular board meeting)?

KerryL1 (California)
Posts: 14,550

Posted:

I may misunderstand Alice but it seems she'd like her spouse to have a proxy to attend board meetings. My understanding though is that proxies are only used to vote. And Owners don't vote at meetings of the Board.

So a POA sounds logical. But must HOA Boards in NY allow Owners (or a sub with a POA) to speak at meetings of the board? Open Forum for Owners are required in CA, but I don't know about other states.

AliceM3 (New York)
Posts: 3

Posted:

You have boiled it down to a simple question. Thank you. Now I hope someone will have the answer! Would a full POA with specific details covering board meetings work in NY?

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By GwenG on 06/05/2017 4:01 PM
I read about this issue and understood that the power of attorney law had changed. The power of attorney can no longer be general; it must be specific as to the action the agent can take on behalf of the person giving it. Therefore, one must present the board with a POA that states specifically..."(name) has the authority to attend all meetings open to owners, vote at those meetings on any matter, speak to designated items on the agenda, etc...on my behalf from (current date) to (future date). That is the idea but not the language. You can probably find a template on the internet to conform to your situation.

The attorney for HOA denied OP's husband a proxy to vote at other than a "members meeting" which it narrowly construed as an Annual Meeting, one of the purposes of which is to elect officers, ratify ballot propositions and adopt proposed budgets. If a proxy is permitted to do this by proxy, I do not understand why simple attendance at meetings would be a problem.

Richard, what possible objection would a board assert to refuse a properly-executed POA by an agent for a owner unable to attend meetings--even without a proxy to vote (which rarely occurs at a regular board meeting)?

Unless challenged, a Board can pretty much refuse anything!

GwenG (Florida)
Posts: 669

Posted:

And there you have it! Alternative life in an HOA!

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