Delegate Neighborhood/Subassociation Voting within Master Assocation

Hi. I was hoping to find others who live in a neighborhood/subassociation within a larger Master Association, and utilize delegate voting members rather than each individual homeowner for voting. I live in one, and our 1 voting member casts all of our 100 votes in elections and for amendment issues. I asked this before, but didn't get any responses. If someone has a similar set up, have they seen any issues, pitfalls, legal precedents, etc?? Ours is set up so the voting member can do what he pleases with any proxies/ballots which are not returned. Others around the country mandate use of unreturned ballots as not counting for anything, some allow proportional use to others which were sent in. If anyone there is familiar with this topic, or hopefully belongs to a subassociation with delegates doing th voting, please let me know. Thanks.

We do live in a subdivision that is one HOA that is also party to a larger HOA. We have also grappled with the issue of unreturned ballots. I have to go back and look at the final decision that was discussed a year or so ago. We hire our own property management and the head tried to push through that all ballots not returned would be a vote in teh affirmative but I don't think that the HOA accepted this. It's an interesting discussion.

I would contend “unreturned votes / proxies” do not count!!! Have you looked through your State Statutes? If your HOA was implemented 25 years ago there are most likely State Statutes which will now “supersede” your HOA governing documents. In my state if my CCR’s were amended and attached to my property title via an entity claiming that unreturned votes were used to pass ... I would hang them by their toenails with a nasty lawsuit. Unreturned votes in most states are a NO on an issue being voted.

Per your governing documents which State Statute sections does the Master Association fall under???

Hmm ... interesting that your name comes up with FL as your state and not HI. If your property falls under Hawaii 421J then the following is noted with regards to your proxy votes:

§421J-4 Proxies. (a) A proxy shall be in writing and shall be valid for only a specified meeting of the association and any adjournments of that meeting.

(b) A member of the association may give a proxy to any person or the board of directors as an entity, and the proxy may be limited as indicated by the member. No proxy shall be irrevocable unless:

(1) The proxy is coupled with a financial interest in the unit; or

(2) The proxy is held pursuant to a first mortgage of record encumbering a unit or an agreement of sale affecting a unit.

(c) To be valid, a proxy shall:

(1) Be delivered to the secretary of the association or the managing agent, if any, no later than 4:30 p.m. on the second business day prior to the date of the meeting to which it pertains;

(2) Contain at least the name of the association, the date of the meeting of the association, the printed name and signature of the person or persons giving the proxy, the unit or units for which the proxy is given, and the date that the proxy is given; and

(3) Contain boxes wherein the owner has indicated that the proxy is given:

(A) For quorum purposes only;

(B) To the individual whose name is printed on a line next to this box;

(C) To the board of directors as a whole and that the vote be made on the basis of the preference of the majority of the board; or

(D) To those directors present at the meeting and the vote to be shared with each board member receiving an equal percentage.

(d) Any board of directors that uses association funds to distribute proxies that include the election of directors shall first post notice of its intent to distribute proxies in prominent locations within the project at least thirty days prior to its distribution of proxies; provided that if the board receives within seven days of the posted notice a request by any owner for nomination to the board accompanied by a statement, the board shall mail to all owners either:

(1) A proxy form containing the names of all owners who have requested nomination to the board accompanied by their statements; or

(2) A proxy form containing no names, but accompanied by a list of names of all owners who have requested nomination to the board and their statements.

The statement shall not exceed one hundred words, indicating the owner's qualifications to serve on the board and reasons for wanting to receive proxies.

(e) Nothing in this section shall affect the holder of any proxy under a first mortgage of record encumbering an apartment or under an agreement of sale affecting an apartment.

(f) Nothing in this section shall prohibit the use of proxies for filling vacancies that occur after the notice of the annual meeting has been distributed. [L 1997, c 132, pt of §1; am L 2001, c 191, §1]

With what is noted in BOLD above it would seem that a proxy NOT properly returned as you have stated in your original post cannot be used to determine or count as a vote.

Does not matter what other states note ... Only matters what YOUR State Statutes allow!!! I would agree with you that potentially an invalid bylaw has been used for 30 years. And how do you change ... LOL ... NO need to Change or Vote ... as your State Statute when it notes words such as “SHALL” becomes definite and “Supercedes” your 30 year old CCR’s. Items in your CCR’s which violate updated State Statutes become “null and void”. An HOA until they update their CCR’s to follow current State Statutes simply on some issues just follows the State Laws.

Thanks. Your comments make sense. I was only mentioning the other states (Florida and California) because they have virtually identical terminology in their Planned Community statutes, and each clearly allows delegate voting including option 3 from Stirling Link I provided earlier. There are 1000s of homeowners around the country with identical delegational voting. I’m not saying these would withstand a higher court challlenge, just they’ve existed forever since Planned Community rules are lax and vague compared to typical condo rules. In all instances I’m describing, the subassociations have their own boards and in many cases stricter bylaws.

Thanks much. Very educational. I’m having a very difficult time confirming whether our bylaws which allow a delegate to vote are legal in the state of Hawaii. Specifically, being able to use unreturned votes as the delegate seems appropriate. I am 100% certain it is lega in California (at least so far) even though I can’t find one thing about it. I think it is not so much allowed, more that it is not disallowed. Our subassociation does not allow that, but we are a condo which has much stricter laws. But our Master bylaws are very clear. Attorneys set up the Master in the early 90s, and still believe it’s ok. But all things legal are subject to opinions. Thanks.

EXCELLENT. Thanks much. That definitely overlaps with our bylaws. Our state clearly alllows proxies for election voting, but the use of unreturned votes as deemed appropriate would seem to violate same concepts as their ruling. Great resource.

That was a one-time registration that was removed from FS 720 in 2017. Any HOA formed after 2016 is likely not in the registry. As far as I can tell it was the start of a process to bring HOAs more directly under the DBPR but the effort didn't last long because lawyers, developers and property managers were against it. The main argument they deployed was that every homeowner would pay their $2 per year and there would STILL be no effective enforcement of anything and the money would be diverted to other uses. True enough, I imagine, but that was no reason to throw the baby out with the bathwater, which is what they did.

I would absolutely not want anything to do with a multi-association setup. One layer is bad enough.