WayneW1 (Alabama)
Posts: 1
Posts: 1
Posted:
Can a homeowner that is in good standing with the association give their proxy vote to a homeowner that is behind in their dues? It is my understanding that you can give your proxy to anyone.
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proxies
Started by WayneW1 • 23 replies • 1946 views
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HB (Oregon)
Posts: 143
Posts: 143
Posted:
I would agree with that unless your CC&R's state otherwise. I don't see why the homeowner in good standing should be penalized.
JohnO6 (Georgia)
Posts: 424
Posts: 424
Posted:
Unless there are superseding state laws, the answer will lie in the precise wording in your governing documents.
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Wayne,
Normally a member in good standing can assign anyone to be their proxy as long as the proxy statement is properly submitted. If the proxy representative happens to be a member not in good standing, then that individual should have the right to vote as a proxy but not as himself (only give them one ballot vs. two).
If your Association is incorporated, a quick research on Alabama non-profit corporation law says that unless the corporations documents say otherwise, voting by proxy is allowed. Here is a link to that that section of law: Code of Alabama Section 10-3A-31
If your complex is a condominium, Alabama code also allows voting by proxy:
Code of Alabama Section 35-8A-310
Hope this helps.
Tim
Normally a member in good standing can assign anyone to be their proxy as long as the proxy statement is properly submitted. If the proxy representative happens to be a member not in good standing, then that individual should have the right to vote as a proxy but not as himself (only give them one ballot vs. two).
If your Association is incorporated, a quick research on Alabama non-profit corporation law says that unless the corporations documents say otherwise, voting by proxy is allowed. Here is a link to that that section of law: Code of Alabama Section 10-3A-31
If your complex is a condominium, Alabama code also allows voting by proxy:
Code of Alabama Section 35-8A-310
Hope this helps.
Tim
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Wayne,
Yes, you may give your proxy to a member who is NOT in good standing; however, that member may not be permitted to vote -- either for himself or by exercising your proxy. I would certainly check that out b/4 giving my proxy to a member of the HOA. Most HOA docs bar a member not in good standing from voting.
Yes, you may give your proxy to a member who is NOT in good standing; however, that member may not be permitted to vote -- either for himself or by exercising your proxy. I would certainly check that out b/4 giving my proxy to a member of the HOA. Most HOA docs bar a member not in good standing from voting.
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
TIM,
I diagree. If a member is not in good standing, if the gov docs so state, he loses his right to vote, whether that vote is cast for himself or as a proxy vote for another member. What part of "cannot vote" don't you understand? LOL
I diagree. If a member is not in good standing, if the gov docs so state, he loses his right to vote, whether that vote is cast for himself or as a proxy vote for another member. What part of "cannot vote" don't you understand? LOL
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Mary,
Granted, I am not a lawyer nor do I work in the legal profession. However, the ability of a member who is not in good standing being allowed to cast a vote for his lot and the ability of anyone being allowed to vote as a proxy for a member who is in good standing are two different issues. I believe it is straight forward enough for even layman to understand. Failure to separate those two issues could lead to problems for the Association.
In one instance, member not in good standing, the Association can remove the voting rights from that member. For the other instance, the proxy representative of a member in good standing, the Association must allow that representative to vote unless they have good faith belief that the proxy appointment was falsified.
As I said, that person is not allowed to cast a vote for himself. However, unless someone can show something within the Associations Documents or, in this case, Alabama law limiting who may be appointed as a proxy the Board must accept the proxy appointment unless they believe it was falsified.
AL law Section 10-3A-31 (Alabama Nonprofit Corporation Act):
"(b) A member entitled to vote may vote in person or, unless the articles of incorporation or the bylaws otherwise provide, may vote by proxy executed in writing by the member, or by his duly authorized attorney-in-fact. No proxy shall be valid after 11 months from the date of its execution, unless otherwise provided in the proxy. Where directors or officers are to be elected by members, the bylaws may provide that such elections may be conducted by mail."
AL law Section Section 35-8A-310 (Alabama Uniform Condominium Act of 1991):
"(b) Votes allocated to a unit may be cast pursuant to a proxy duly executed by the 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 actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates one year after its date, unless it specifies a shorter term."
West's Encyclopedia of American Law, edition 2. Copyright 2008:
"A proxy is a person who is designated by another to represent that individual at a meeting or before a public body. It also refers to the written authorization allowing one person to act on behalf of another.
In corporate law, a proxy is the authority to vote stock. This authority is generally provided by the charter and bylaws of a corporation or by a state statute. If authority is not provided, a stockholder cannot vote by proxy. The record owner of the stock whose name is registered on the corporate books is the only individual who can delegate the right to vote. In the absence of an express requirement, no particular form is necessary for a proxy. It must, however, be evidenced by a sufficient written grant of authority. A proxy is not invalid if minor errors or omissions appear on the document.
Generally any power that a stockholder possesses at a corporate meeting can be delegated to a proxy. An ordinary proxy can vote on regular corporate business, such as the amendment of the bylaws. The proxy is not authorized to vote, however, on extraordinary corporate business, such as a merger, unless given special authority to do so. When a proxy acts within the scope of her authority, under agency principles, the stockholder is bound as if she acted in person."
Tim
Granted, I am not a lawyer nor do I work in the legal profession. However, the ability of a member who is not in good standing being allowed to cast a vote for his lot and the ability of anyone being allowed to vote as a proxy for a member who is in good standing are two different issues. I believe it is straight forward enough for even layman to understand. Failure to separate those two issues could lead to problems for the Association.
In one instance, member not in good standing, the Association can remove the voting rights from that member. For the other instance, the proxy representative of a member in good standing, the Association must allow that representative to vote unless they have good faith belief that the proxy appointment was falsified.
As I said, that person is not allowed to cast a vote for himself. However, unless someone can show something within the Associations Documents or, in this case, Alabama law limiting who may be appointed as a proxy the Board must accept the proxy appointment unless they believe it was falsified.
AL law Section 10-3A-31 (Alabama Nonprofit Corporation Act):
"(b) A member entitled to vote may vote in person or, unless the articles of incorporation or the bylaws otherwise provide, may vote by proxy executed in writing by the member, or by his duly authorized attorney-in-fact. No proxy shall be valid after 11 months from the date of its execution, unless otherwise provided in the proxy. Where directors or officers are to be elected by members, the bylaws may provide that such elections may be conducted by mail."
AL law Section Section 35-8A-310 (Alabama Uniform Condominium Act of 1991):
"(b) Votes allocated to a unit may be cast pursuant to a proxy duly executed by the 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 actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. A proxy terminates one year after its date, unless it specifies a shorter term."
West's Encyclopedia of American Law, edition 2. Copyright 2008:
"A proxy is a person who is designated by another to represent that individual at a meeting or before a public body. It also refers to the written authorization allowing one person to act on behalf of another.
In corporate law, a proxy is the authority to vote stock. This authority is generally provided by the charter and bylaws of a corporation or by a state statute. If authority is not provided, a stockholder cannot vote by proxy. The record owner of the stock whose name is registered on the corporate books is the only individual who can delegate the right to vote. In the absence of an express requirement, no particular form is necessary for a proxy. It must, however, be evidenced by a sufficient written grant of authority. A proxy is not invalid if minor errors or omissions appear on the document.
Generally any power that a stockholder possesses at a corporate meeting can be delegated to a proxy. An ordinary proxy can vote on regular corporate business, such as the amendment of the bylaws. The proxy is not authorized to vote, however, on extraordinary corporate business, such as a merger, unless given special authority to do so. When a proxy acts within the scope of her authority, under agency principles, the stockholder is bound as if she acted in person."
Tim
RuthF1 (Washington)
Posts: 117
Posts: 117
Posted:
We had this come up today at our meeting. NO WHERE in our docs does it say that a member has to be in good standing to vote or serve on the board. I thought that was in all Bylaws but cannot find it in ours. I think we need to reveiw/update our docs.
r
r
RichardP13 (California)
Posts: 1,767
Posts: 1,767
Posted:
Tim
I would disagree. A member, not in good standing, should not be able to vote, nor should they be allowed to hold proxies in the event they have to exercise some type of vote, maybe a rule change or adjourning a meeting. If the proxy holder was merely transporting the proxies from point A to point B and would not exercise any kind of vote, why not.
I would disagree. A member, not in good standing, should not be able to vote, nor should they be allowed to hold proxies in the event they have to exercise some type of vote, maybe a rule change or adjourning a meeting. If the proxy holder was merely transporting the proxies from point A to point B and would not exercise any kind of vote, why not.
GlenL (Ohio)
Posts: 5,491
Posts: 5,491
Posted:
Sorry Mary and Richard but Tim is correct, unless the CC&R’s and or state law prohibit it, you may give your proxy to anyone you see fit and they have every right to execute it as you have specified. That person doesn’t even need to be a member of the HOA; Tim could assign his proxy to me as long as I were willing to travel to Virginia and his Association couldn’t legally stop me from attending the meeting and carrying out his wishes. A proxy is simply a limited power of attorney allowing one person to act for another so for all intents and purposes the holder of the proxy is a member in good standing; as long as the issuer of the proxy was. There are even a few states where you can be married by proxy.
Studies show that 5 out of 4 people have problems with fractions
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Glen,
From what legal source did you obtain this info? And was the actual issue of this thread addressed, i.e. can someone who is not qualified to vote cast a proxy vote? I know what a proxy is and what the legality of using one is; but in all the info I've read on the topic I've never seen this particular issue addressed.
I would tend to agree the member not in good standing could cast a limited proxy in which the proxy giver is actually voting; however, if he is unable to vote then how can he cast a general proxy by which HE is actually voting?
From what legal source did you obtain this info? And was the actual issue of this thread addressed, i.e. can someone who is not qualified to vote cast a proxy vote? I know what a proxy is and what the legality of using one is; but in all the info I've read on the topic I've never seen this particular issue addressed.
I would tend to agree the member not in good standing could cast a limited proxy in which the proxy giver is actually voting; however, if he is unable to vote then how can he cast a general proxy by which HE is actually voting?
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Mary,
I know you asked Glen, but I believe I can answer your questions.
Quote:
Posted By MaryA1 on 02/05/2010 1:56 PM
From what legal source did you obtain this info?
From what legal source did you obtain this info?
If you go back to in this Thread I actually cited Alabama law.
I also cited West's Encyclopedia of American Law to define a proxy.
Quote:
Posted By MaryA1 on 02/05/2010 1:56 PM
And was the actual issue of this thread addressed, i.e. can someone who is not qualified to vote cast a proxy vote?
And was the actual issue of this thread addressed, i.e. can someone who is not qualified to vote cast a proxy vote?
Yes, i believe that the OP question was addressed. Per Alabama law, where the OP lives, [and I suspect other States Corporate laws] A member in good standing my assign his/her proxy to anyone they choose to act on their behalf.
Quote:
Posted By MaryA1 on 02/05/2010 1:56 PM
I would tend to agree the member not in good standing could cast a limited proxy in which the proxy giver is actually voting
I would tend to agree the member not in good standing could cast a limited proxy in which the proxy giver is actually voting
You agree that a member in good standing can assign a member not in good standing to act as their proxy.
You also agree that the proxy, even though they are a member not in good standing, can cast a vote according to the wishes of the member who is in good standing.
Quote:
Posted By MaryA1 on 02/05/2010 1:56 PM
however, if he is unable to vote then how can he cast a general proxy by which HE is actually voting?
however, if he is unable to vote then how can he cast a general proxy by which HE is actually voting?
The person would not be voting for themselves.
The Board, by accepting the proxy statement based on the sole fact that there was no reason to believe the statement was falsified (per AL law), acknowledged that the person identified in the proxy statement would be acting as proxy for a member who was eligible to vote.
The person identified as the proxy would be voting according to the wishes of the person who made signed the proxy statement. In this case, the desire of the member in good standing would be directing their proxy to vote how ever they thought best.
Mary,
The issue isn't who is the individual casting the actual vote.
The issue is who is the vote being cast on behalf of.
The law says the Board can only reject the proxy statement if they have good faith belief that the document is falsified. By accepting the proxy, the Board is to consider the individual - no matter who that individual is - to be the member who signed the statement.
Tim
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Tim,
Yes, I said the member who is NOT in good standing could cast a proxy vote if it was a directed proxy, which means the proxy giver is actually voting. However, if it is a general proxy (the proxy hold votes however he chooses) then I believe a member in good standing could not hold the proxy. I don't believe the OP stated what type proxy would be used.
You stated that you believe the OP's question was addressed then you go on to quote the answer: "A member in good standing may assign his/her proxy to anyone they choose to act on their behalf". That was NOT the question asked. The question was "Can a homeowner that is in good standing with the association give their proxy vote to a homeowner who is behind in their dues?" Meaning can they give their proxy to a member who is not in good standing? I would venture to say there is no legal opinion on that question. "A member in good standing" is only a term you hear with regard to HOAs. You can look up all the proxy info on the internet and look at all the questions being asked and the answers given and I would bet you won't find the OP's question. We can all opine but I believe that's all we can do. I would suggest the OP ask an attorney for a legal opinion. However, we've not heard from the OP since he started this thread!
Yes, I said the member who is NOT in good standing could cast a proxy vote if it was a directed proxy, which means the proxy giver is actually voting. However, if it is a general proxy (the proxy hold votes however he chooses) then I believe a member in good standing could not hold the proxy. I don't believe the OP stated what type proxy would be used.
You stated that you believe the OP's question was addressed then you go on to quote the answer: "A member in good standing may assign his/her proxy to anyone they choose to act on their behalf". That was NOT the question asked. The question was "Can a homeowner that is in good standing with the association give their proxy vote to a homeowner who is behind in their dues?" Meaning can they give their proxy to a member who is not in good standing? I would venture to say there is no legal opinion on that question. "A member in good standing" is only a term you hear with regard to HOAs. You can look up all the proxy info on the internet and look at all the questions being asked and the answers given and I would bet you won't find the OP's question. We can all opine but I believe that's all we can do. I would suggest the OP ask an attorney for a legal opinion. However, we've not heard from the OP since he started this thread!
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Tim,
Correction! First para, second sentence should read: "However, if it is a general proxy (the proxy holder votes however he chooses) thin I believe a member NOT in good standing could not hold the proxy."
Correction! First para, second sentence should read: "However, if it is a general proxy (the proxy holder votes however he chooses) thin I believe a member NOT in good standing could not hold the proxy."
GlenL (Ohio)
Posts: 5,491
Posts: 5,491
Posted:
Mary if the CC&R’s are silent on the matter then anyone can be a proxy holder and vote as the proxy allows either directed or as the proxy holder desires. For the purposes of the meeting the proxy holder is a member in good standing, s/he is considered the same person as the proxy giver. Now I know AZ doesn’t allow proxies but if it did and you decided to give your proxy to your child who lives with you but is not on the deed and therefore not a member in good standing; that child could vote the proxy as they saw fit unless it were a directed proxy.
The simplest thing IMO is whenever the By-Laws are amended add a phrase such as: “Only a member in good standing may act as a proxy holder.”
The simplest thing IMO is whenever the By-Laws are amended add a phrase such as: “Only a member in good standing may act as a proxy holder.”
Studies show that 5 out of 4 people have problems with fractions
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Glen,
What you say may be true, but I believe most boards would not accept the proxy from a member not in good standing, or even perhaps from someone who is not a member of the assn. Whether this is legal or not it does happen in many assns -- the BOD decides if the proxy is valid. In fact, I know of some assns where the BOD will not accept a proxy that is not the one they sent with the meeting notice. The only recourse a member has is to take the BOD to court and we all know how rarely that happens.
BTW, the fact that a person is a nonmember does not make him a member not in good standing -- he's just a non-member. A member not in good standing means that member is in violation of the gov docs and/or delinquent in payment of the assessments and for that reason his right to vote has been suspended.
What you say may be true, but I believe most boards would not accept the proxy from a member not in good standing, or even perhaps from someone who is not a member of the assn. Whether this is legal or not it does happen in many assns -- the BOD decides if the proxy is valid. In fact, I know of some assns where the BOD will not accept a proxy that is not the one they sent with the meeting notice. The only recourse a member has is to take the BOD to court and we all know how rarely that happens.
BTW, the fact that a person is a nonmember does not make him a member not in good standing -- he's just a non-member. A member not in good standing means that member is in violation of the gov docs and/or delinquent in payment of the assessments and for that reason his right to vote has been suspended.
RuthF1 (Washington)
Posts: 117
Posts: 117
Posted:
George I wish that were true. Ours did. This is my first year as president going on second. I didn't realize that we didn't have that provision in our bylaws. It is something we will look at changing this year when we update our bylaws and rules.
RuthF1 (Washington)
Posts: 117
Posts: 117
Posted:
sorry Mary, I was actually responding to you...Don't know where "George" came from
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Hi Ruth,
Sorry, but I'm not sure what provision you are talking about.
Sorry, but I'm not sure what provision you are talking about.
RuthF1 (Washington)
Posts: 117
Posts: 117
Posted:
I was referring to "but I believe most boards would not accept the proxy from a member not in good standing"
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Ruth,
If your Association is incorporated, check your State Corporate laws. They usually address proxies and sometimes even specify when the proxy may be refused.
I've read various States corporate laws about proxies and most agree that the proxy statement can only be refused if they have a good faith belief that the statement is falsified. (no I haven't looked at Washington laws).
Tim
If your Association is incorporated, check your State Corporate laws. They usually address proxies and sometimes even specify when the proxy may be refused.
I've read various States corporate laws about proxies and most agree that the proxy statement can only be refused if they have a good faith belief that the statement is falsified. (no I haven't looked at Washington laws).
Tim
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Tim,
That may be true; however, what is not being taken into consideration is the restriction in HOA CCRs or bylaws that a member not in good standing cannot cast a vote; therefore, IMO, he also cannot hold a general proxy (one that allows him to vote for the proxy giver as he chooses which is the same as casting his own vote).
That may be true; however, what is not being taken into consideration is the restriction in HOA CCRs or bylaws that a member not in good standing cannot cast a vote; therefore, IMO, he also cannot hold a general proxy (one that allows him to vote for the proxy giver as he chooses which is the same as casting his own vote).
TimB4 (Tennessee)
Posts: 21,062
Posts: 21,062
Posted:
Mary,
I think we need to agree to disagree on that point.
Tim
I think we need to agree to disagree on that point.
Tim
MaryA1 (Arizona)
Posts: 7,043
Posts: 7,043
Posted:
Tim,
Agreed!
Frankly, I do believe this is something that needs an attorney's interpretation. As I said earlier, all the explanations one can find do not really address the issue of a member not in good standing.
Agreed!
Frankly, I do believe this is something that needs an attorney's interpretation. As I said earlier, all the explanations one can find do not really address the issue of a member not in good standing.
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