As an HOA member, you can and should be included when important decisions that impact the association are made. That means attending meetings and electing board members who represent your needs and values. But what if you don’t live near the property you own, or you simply can’t attend a member meeting?
Conversely, you may be a board member who is concerned about getting enough votes to be re-elected to the board, or pushing an important project forward. Without enough votes, decisions cannot be made, and productivity suffers.
This is where designating trusted proxies comes in handy.
What is a proxy?
A proxy is a document that authorizes an owner to appoint someone else to represent and vote for them. By giving someone proxy, you’re saying that they can cast your ballot at an HOA meeting on your behalf.
Owners may decide to vote by proxy because:
- They want to vote at an owners meeting, but can’t physically be there
- They’d like to ensure that the meeting reaches quorum
- E-voting is not an option, making proxy voting an attractive alternative option
From a board’s perspective, proxies can be useful in helping an association reach quorum. A quorum is the number of owners who must be present before a meeting can begin. The minimum number for each association usually depends on provincial or state laws, and the association’s governing documents.
It is common for associations to follow a quorum requirement that falls within the range of 10 – 20%. This is often the case for annual meetings. If no quorum requirements exist within the association’s governing documents, and there aren’t any state statutes available to provide guidance on the issue, the quorum requirement defaults to 51%.
Giving owners the option to use a proxy vote can drastically help associations reach quorum, and as a result, decisions can be made without unnecessary delays. Furthermore, issues can be addressed in a timely manner and boards can get more done for their community when people are engaged.
How does proxy voting work?
The person giving the proxy must be the designated voting representative for their property. In other words, a person can only sign a proxy if that person has the right to vote. A tenant who is renting a unit or home from the owner would not have the right to vote in the association’s annual meeting.
A proxy must be designated in writing. It should include specific details explaining how the proxy works and who to send it to. The document should require information about the owner who is giving proxy, it should indicate who is authorized to cast the ballot for the owner, and it should detail how the owner wants to vote/who they want to vote for. The date of which the proxy is to be used must appear on the proxy. This should correspond to the date of the meeting. Note that it is acceptable for the proxy to be used at the meeting, and at any adjournment of the meeting.
There are two types of proxies, meaning owners not only have to select a proxy holder to represent them, but they also have to ensure they understand what they are asking the proxy holder to do on their behalf. It’s important to review and give due attention to the language of each written proxy so that the owner understands precisely the authority which they are giving.
A directed proxy means the proxy holder has a right to vote on behalf of the unit owner, but the unit owner selects the specific issues that they want the proxy to vote on.
A non-directed proxy means the proxy holder can vote on whatever issues are on the meeting’s agenda.
As a best practice, proxy forms should be distributed at the same time a meeting announcement is sent out. The owner designating the proxy should make a copy of the original document to give to the proxy holder who will be voting on their behalf. A copy may also be given to the association’s management company, if applicable so that they are aware that the owner has given proxy.
The person who has been given the authorization to represent the owner must show up to the meeting in person and cast a ballot for the owner’s vote to count.
Who can act as a proxy?
Unless your provincial, state law or governing documents say otherwise, you can appoint just about anybody to be your proxy. So, an owner could ask their neighbor, their spouse, or even a friend to vote on their behalf.
It probably makes sense to appoint another owner, or at the very least, someone you trust. You don’t want someone to betray your wishes and vote for a representative who you did not want to elect.
Many associations have a standard proxy form which designates the board’s secretary as a proxy for owners who are unable to attend board meetings or appoint a proxy to represent them.
Depending on laws and governing documents, it may also be possible to give a proxy to more than one person if multiple issues require separate votes.
When can an owner use a proxy?
Many HOAs will allow proxies to be used for AGMs or requisition meetings in order to reach a quorum, but not all states will allow proxies for every meeting. For example, you may not be able to use proxy voting for a board election. There may also be different rules for condo and homeowner associations.
Can a board member ask for a proxy?
Candidates who are running for a position on the board can ask for proxies from other owners in order to increase their chances of being elected or re-elected. However, they should not be harassing association members for votes, and any infraction of governing rules could result in disqualification. Some governing documents may even place a limit on the number of proxies that one member can gather to prevent politicking.
Similarly, property managers may be able to ask for proxies under certain circumstances, but there are some restrictions. In certain states for example, the Condominium Management Service Act prohibits managers from soliciting proxies to be used at owners meetings if subject matter of the meeting includes:
- matters directly related to the manager; and,
- the removalor election of one or more directors.
No member of the association is permitted to offer to pay proxies or make inappropriate deals with other members in exchange for the promise that they’ll be given special treatment if the candidate is elected to the board.
It is important for all members to be aware of all laws and rules that govern proxy voting for their association so that they do not violate any of those rules or render meetings invalid.
If directed proxies have been authorized, there should be some process in place to ensure directions are followed. It is part of a board’s fiduciary duty to members to ensure ballots are cast according to the proxy’s directions. Therefore, it may be helpful for the association to use different colored ballots to differentiate proxy votes.
If an inspector is not required by law to ensure a fair election, the association may want to hire one. This person should not have any stake or interest in the association. An inspector can ensure that ballots are cast in accordance with the directions on the proxy without jeopardizing a voter’s anonymity.
Revoking a proxy
Boards must also be very careful about following the rules for revoking proxies. Voters can revoke a proxy by issuing a new one, or by providing written notice to the board’s secretary. The owner may also revoke a proxy if they show up for the meeting in person and cast their own ballot.
It is a good idea to include these conditions on the proxy form so that all members of the association are aware of them.
Power of attorney
Sometimes, a member will want to give a proxy to the person who holds their power of attorney. In many states, if that person is a lawful power of attorney, no proxy is needed. The person who has been granted power of attorney has the right to vote for the owner.
Homemade proxy forms
If a proxy form that was not distributed by the association is submitted by an owner, check with your provincial or state law before deeming it invalid. If certain elements are met under the law, it may be valid. If that is the case, it must be honored.
Proxy voting can be an excellent way to ensure a quorum is reached. Instead of having to reschedule a meeting, associations can move forward with important issues. Furthermore, owners will appreciate the additional convenience that proxies can provide.
Some associations may be hesitant about proxy voting, but with careful planning and proper execution, proxy voting can benefit the entire association.
Download our free proxy voting template