Are Proxies Useful?
January 29, 2009 • By Kelly G. Richardson
Dear Mr. Richardson:
Never miss your column.
Some members of our association are trying to get something built in our development, and a survey is going out to all members. Civil Code Section 1363.03 (as amended 7-1-06) stipulates the double envelope requirement for voting. This section also discusses proxies. I had always assumed that proxies could only be used at the annual election. Does the statute allow the use of proxies so far as a substantial assessment vote is concerned?
Thanking you in advance.
R.J., La Verne
Dear R.J.:
In past years, the general proxy provided a convenient way for members to entrust to another member their vote. Proxies also provided a way for associations to meet quorum requirements, and directed proxies (where the member indicates exactly how the ballot should be voted) were used essentially as absentee ballots.
However, this all changed in 2006. Now, written secret ballots are required on the main items typically voted by members - election or recall of directors, assessment votes, governing document amendments, and grants of exclusive use common area rights. Since these ballots are given to members at least thirty days ahead of the election, It is just as convenient to fill out a ballot as it is to give another member a general proxy. As to directed proxies, the law imposed new requirements which as a practical matter made them all but impossible to use correctly. Therefore, the usefulness of proxies has declined dramatically.
If your governing documents permit or require proxies, Civil Code Section 1363.03(d) states that they can still be used. If so, they can be used on almost any membership vote. However, some specialized situations, such as recall, or acceptance of a conflict of interest, require that proxies specifically mention that issue.
Proxies are all too often the source of conflict and confusion within CID’s. Because they normally are presented by an intermediary and not the member, disputes can arise regarding their legitimacy.
Because of the decline in their usefulness, and the many disputes that arise regarding proxies, associations may consider amending their bylaws to ban them, except perhaps for the narrow purpose of meeting quorum.
Kelly
Kelly G. Richardson is the Managing Partner of Richardson & Harman PC, a California law firm known for real estate and community association advice.Direct questions to KRichardson@RH4Law.com. For past columns, visit http://www.hoahomefront.com/. All rights reserved®.
Visitor Comments (2)
Proxies
Posted By JAMESHOA on March 16, 2009
Our OYO allows Proxies but to no detail.
A non Owner or non live in Family member would need a Power of Attorney to use one, right ?
An Estate Administer wouldn't need a PofA but would get one from the Judge if necessary, right ?
But what about the Administer's Fix-It Handy-Man, attends meetings, would need one but unlikely for him to have a PofA ?
Proxies
Posted By JAMESHOA on March 16, 2009
PS: Please add this to my Post tonight -
Dear Mr. Richardson:
& Thanks, J.P., Pasadena