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PROXY VOTES

Started by KathyS15 • 13 replies • 1020 views

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KathyS15 (Ohio)
Posts: 28
Posted:
Our new Board has found some proxy forms we think were not done correctly.

There is a place on the proxy form where a "Proxy Holder" is designated to vote in stead of the homeowner (who will not be at the meeting). It can be left blank or be filled in with someone's name that will be at the meeting. The end of the form is where the homeowner signs it as the "Proxy Giver".

We have several where the same name is used in both places (as proxy holder and proxy giver). They were not at the meeting.

Is this an improper proxy and should not count?
JanetB2 (Colorado)
Posts: 4,219
Posted:
Yes was improperly completed and would not count.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Is it improper, technically yes.
However, the intent was likely to designate the Board (leave blank) as the proxy representative.

If there is time prior to the meeting, I would contact the proxy holder to find out their intent and adjust the form as needed.

If there is not time before the meeting, I would count the proxy toward quorum and have the board fill out the ballots. However, I would withhold those specific ballots to see if the votes were close enough to make a difference if those votes were counted or not. If they were, I would seek a legal opinion prior to counting the ballots (as the issue could be challenged).

If the ballots would not make a difference, I would count them, make adjustments to the form to try and not have the issue in the future and move on.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By TimB4 on 10/28/2017 10:11 AM
Is it improper, technically yes.
However, the intent was likely to designate the Board (leave blank) as the proxy representative.

If there is time prior to the meeting, I would contact the proxy holder to find out their intent and adjust the form as needed.

If there is not time before the meeting, I would count the proxy toward quorum and have the board fill out the ballots. However, I would withhold those specific ballots to see if the votes were close enough to make a difference if those votes were counted or not. If they were, I would seek a legal opinion prior to counting the ballots (as the issue could be challenged).

If the ballots would not make a difference, I would count them, make adjustments to the form to try and not have the issue in the future and move on.


I would challenge that in a heartbeat ... especially if any vote was for amending the CCR's attached to my property title. There is no reason ... especially if the ballot would not make a difference to count any improper completed ballot or proxy. It would be asking for trouble ....
JanetB2 (Colorado)
Posts: 4,219
Posted:
Kathy ...

Keep in mind Proxy Forms same as other documents such as a Power of Attorney is a LEGAL FORM. No other handwriting other than the individual who completed the form should be on the form making any changes. If the original person wants to make a change and initial the change in their own handwriting would be fine. Anyone else making a change in their handwriting could be considered fraud and avoided. There should be no "tampering" of any legal form or document.

All individuals have an obligation to complete any legal forms properly ... if they did not properly complete that is their own mistake.
TimB4 (Tennessee)
Posts: 21,059
Posted:
Janet,

What if it was a typical annual meeting with only elections being held?
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By TimB4 on 10/28/2017 12:13 PM
Janet,

What if it was a typical annual meeting with only elections being held?


Sorry ... I do not recommend tampering with proxies no matter the circumstance. How many times on here do individuals rant and rave about how elections were not properly held or about improper proxies. If the election is challenged then any proxy which had been tampered with would become "null and void". If I ever challenged I would have the court throw out any and all proxies which had been "tampered" with in any way shape or form ... and if peeved enough over the issue potentially pursue fraud charges and fiduciary duty. Sorry ... nobody has the right to ASSUME they know what I wanted when I signed a legal form and ZERO right to change it!!! If I did not complete it correctly then it would be my bad ... the HOA should not make it their bad.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
The OP did not mention tampering. His question was they had proxies with the proxy holder and the proxy giver being the same and the person not being at the meeting. It seems it was a simple error on the givers part naming themselves also as the holder.

I say the proxy counts toward quorum. Also if the proxy had names and/or issues on it to to vote for on (a directed proxy) and they were filled out, it should be counted as the giver did vote that way and sign it. As far as anyone using it otherwise, no. Even if the proxy said the BOD could vote it if the holder was not named, it cannot be used as such.
PaininyourA
Posts: 215
Posted:
a proxy should not be used in place of an absentee ballot

proxies MUST be voted IN PERSON by the proxy HOLDER / DESIGNEE

BY DEFAULT one is one's own proxy UNLESS one designates someone ELSE to act in one's place

(perhaps the HOA in ? has no provision for absentee ballots)

this is so elementary it is hard to explain
GenoS (Florida)
Posts: 4,276
Posted:
In many jurisdictions a proxy is not valid unless the proxyholder is present in person at the meeting. If the named proxyholder wasn't present then the proxy would be invalid no matter whose name was written in. FL arbitration case number 01-2401 was about several undated proxies that were counted as YES votes for the passage of an amendment to the CCRs. Without those YES votes the amendment would have failed. The DBPR noted that one of the things required for a valid proxy is that it be dated. It would have been a simple matter to just fill in the date, but the DBPR ruled that they were invalid (and the amendment failed to pass). Of note, the list of things required to make a proxy valid does not include the requirement that the named holder be someone other than the proxy giver. Tough call. I would lean towards invalidating them.
PaininyourA
Posts: 215
Posted:
sooooooo

let me make a proxy designating myself as the holder

then

take it to the meeting and vote (it) in person

?why bother?

meter at 100%
I'm out

GeorgeR8 (Arizona)
Posts: 182
Posted:
I'm glad I live in a no proxy state. In person ballots and absentee ballots only. A lot less aggravation.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By JohnC46 on 10/29/2017 7:43 AM
The OP did not mention tampering. His question was they had proxies with the proxy holder and the proxy giver being the same and the person not being at the meeting. It seems it was a simple error on the givers part naming themselves also as the holder.

I say the proxy counts toward quorum. Also if the proxy had names and/or issues on it to to vote for on (a directed proxy) and they were filled out, it should be counted as the giver did vote that way and sign it. As far as anyone using it otherwise, no. Even if the proxy said the BOD could vote it if the holder was not named, it cannot be used as such.


NOPE ... the OP did not mention tampering. It was mentioned in a response post. I was just making sure everyone understood this is a Legal Document and should absolutely not be changed by any other individual. While it might be a simple error ... does not make it VALID in any way, shape, or form! The Owner's simple error is their bad ... it should not become the HOA's bad with any ASSUMPTIONS which could lead to legal litigation.

If I completed a Power of Attorney incorrectly ... you are stating that everybody and their dog should IGNORE the State Laws and just assume they know what I would have wanted??? Really??? Instead it should become "null and void" the same as any invalid proxies. The point is if not completed correctly ... it is not valid!!!
JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By PaininyourA on 10/30/2017 7:32 AM
sooooooo

let me make a proxy designating myself as the holder

then

take it to the meeting and vote (it) in person


LOL ... The point of any proxy is to give ANOTHER individual the power to vote because you cannot attend. However, the holder of the proxy is supposed to be at the meeting to cast the votes for themselves and any proxies they hold,

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