Real Estate & Property Law

Can You Prevent Proxies in HOA and Condo Elections?

Elections in HOAs and Condo Associations can be touchy. Proxies are one area of continuing dispute, concern and consternation. See the following email from a reader:

"I am not sure if you respond to email questions, but here goes. Our HOA consists of 6 units, three owner occupied, three leased out. One of the leased units owners is local, but has decided she no longer wishes to attend meetings (2 a year). The other two send proxies to other members for meetings which we use in voting for resolutions. Can we change our bylaws to refuse to accept proxies? The three owners on site are the only ones who hold office and see of the upkeep of property and resolution of al issues that arise."

Here is my take on Civil Code Section 1363.03. If the HOA or Condo docs allow owners to use proxies, then unless the provisions are amended, owners can give proxies to other owners and allow them to vote in their place. The proxies have to be legally valid ones (meaning they have to set forth the name of the association and who is giving the proxy, who is getting the proxy, and what election is covered). Generally proxies are good for 11 months if there is no specific election or meeting designated but its best to check with an attorney because the governing documents or proxy itself may dictate the legality of it.

However, since 1363.03 the legislature has made it clear that proxies do not count as ballots so HOAs and Condo boards need to be prepared to give the proxy (holder of the proxy) a ballot package to use for voting.

And as to the last remark stating that the 3 onsite owners are the ones who serve indicates to me that the proxies don't make much difference in the director election if the 3 resident owners continue to serve. And it appears that the offsite owners give the proxies to the onsite owners so it seems to me that the decision making power rests with the onsite owners.

Good or bad unless the governing documents are amended by the members of the association - assuming they allow for proxies - the Board must continue to honor them in elections.

PS - a lot of practitioners and Californians missed the change that occurred by urgency legislation 3 months after the law originally took effect that made it clear proxies must be accepted if the governing documents allow them.

Full post as published by California Condo & HOA Law on January 01, 2011 (boomark / email).