Failure to Return Proxy for Annual Meeting Constitutes Affirmative Vote

I think this confuses people. Blame apathy on this one. A HOA has to count non votes. However, that does not mean ignore and only use those submitted. 50 of 100 people responding still has to have 100.

What to do with the votes if no one casts? The HOA figures that a non vote or response means no objection. If no one objects then it counts as a yes vote.

Now if 45 people voted no and objected then those votes may change to no. That the will of the people is no.

So non votes can be subjective.

There are people here who actually know what they're talking about. Wait for their response(s).

In the meantime, this is common for corporations needing to hold and conduct business at their Annual meetings. The process is structured so that everyone gets voting materials and a proxy to use, because almost no one actually flies in to the meeting, and the Board retains the power to cast any proxy that isn't returned by the date in the notice and the person doesn't show up in-person to the meeting. Why, this is how it even works at my local credit union.

And, yes, it makes it next to impossible to challenge the status quo.

IF, the proxy says a non-returned proxy means a yes vote, then it WILL be counted toward quorum and marked as yes.

I can say the proxy language is very clear and easy to understand. In fact, it's printed twice. My bet is apathy is high. This is a self-managed HOA so status quo would be very important to those leaders, I'd think.

I completely agree with Cathy.

The relevant NC statutes appear to me to be clear that a person may vote by proxy only when certain steps are taken. From the NC nonprofit corporation statute:


A member may appoint one or more proxies to
vote or otherwise act for the member by signing an appointment form, either personally or
by the member's attorney-in-fact. An appointment in the form of an electronic record
submitted by a member who has agreed as provided in G.S. 55A-1-70 that either bears the
member's electronic signature or is sent from the member's designated email address and
that may be directly reproduced in paper form by an automated process shall be deemed a
valid appointment form within the meaning of this section


From the NC HOA statute 47F:


Votes allocated to a lot may be cast pursuant to a proxy duly executed by a lot owner. If a lot is owned by more than one person, each owner of the lot may vote or register protest to the casting of votes by the other owners of the lot through a duly executed proxy. A lot owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated. A proxy terminates 11 months after its date, unless it specifies a shorter term.


"Duly executed" surely means the lot owner took certain physical steps to submit an actual proxy. That is, the lot owner didn't just throw the proxy in the trash can and expect anyone to believe her/his throwing the proxy out meant she/he had just "executed" (signed, dated et cetera) the proxy.

From NC condo statute 47C:


Votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit
owner. If a unit is owned by more than one person, each owner of the unit may vote or register
protest to the casting of votes by the other owners of the unit through a duly executed proxy. A
unit owner may not revoke a proxy given pursuant to this section except by written notice of
revocation delivered to the person presiding over a meeting of the association. A proxy is void
if it is not dated.


I see other corporations that seem to be doing similar to the corporation in question. E.g. See https://www.buchanantheatre.com/members. As ThomasP13 suggests, maybe it is not uncommon. But for NC HOAs, COAs and nonprofit corporations, I think the format the OP describes is not a lawful proxy to the extent the HOA or COA is counting unreceived (and so not executed; not dated; et cetera) proxy forms as votes.

I would not be surprised if there were case law on this.

I would be interested to know whether others read the statute sections as I do.

I agree with Augustin's interpretation of "Votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner."

I'm thinking "executed" does mean signed. We often see that HOA owners may review "executed" contracts, for instance. This means once th contract is signed by all parties.

a non-returned proxy is neither a vote yes-or-no. It is an absent attendance and not present for a vote. The state law quoted says that a decided action by the proxy owner needs to happen in order to make the proxy become a "present" and able to vote.

I agree with everyone who has stated that it's not valid to count non-existing proxy's.

An attorney consult may be the only way to nullify the proxy.