BOARD MUST LET HOMEOWNERS CHOOSE THEIR OWN PROXIES

Q. Many homeowners in our condominium are very unhappy with proxy forms received for annual membership meetings.  The proxy form designates the board of directors to cast a ballot for the owners who cannot appear in person.  The proxy does not allow owners to designate a person of their own choice.  Our governing documents say the owner "shall have the right to vote in person or by agent(s) duly authorized by written proxy."  We asked the board to adhere to the governing documents and place a line allowing a person other than the board to act as proxy.  The board refused to do so and has not given any reason for its refusal. Is there anything that can be done to force the board to allow someone other than themselves to be the proxy and cast a vote for us?  Any help you can give will be appreciated.

A. It appears that either the directors are not familiar with the association's documents, or if familiar, they are ignoring the documents for their own reasons. 

The California Corporations Code sections noted will be helpful in seeking an answer.

• Section 5069 defines proxy:"Proxy means a written authorization signed by a member or the member's attorney in fact giving another person or persons power to vote on behalf of such member."
• Section 7514(b) states: "In any election of directors, any form of proxy or written ballot in which the directors to be voted upon are named therein as candidates and which is marked by a member 'withheld' or otherwise marked in a manner indicating that the authority to vote for the election of directors is withheld shall not be voted upon for or against the election of a director."
• Section 7613(a) authorizes proxies: "Any member may authorize another person or persons to act by proxy with respect to such membership...." 

Hawaii has recognized this problem and, by law, in order for a proxy to be valid, the proxy must contain four boxes, as a minimum, wherein the owner has to indicate how the proxy is to be given. The four are: 1) for quorum purposes only; 2) to the individual whose name is printed next to this box; 3) to the board of directors as a whole and that the vote be made on the basis of the preference of the majority of the board; or 4) to those directors present at the meeting and the vote to be shared with each board member receiving an equal percentage.

Because many common interest developments (CID's) find it very difficult to obtain a quorum at annual meeting, proxies are absolutely necessary to allow the meeting to be held.  The board has authority to issue proxies.  It is not generally known that an owner may submit a proxy of his/her own and does not have to use the board proxy.

The board members, if they are interested in fair, clean elections, can by resolution use the Hawaii experience so that owners will have an accurate choice on how their proxies are to be voted. Should the board not do so, the owner can request that this issue be placed on the agenda at the next annual membership meeting, thus giving the members a vote on how they want the proxies worded. Should the board fail to place the issue on the agenda, 5 percent of the members can sign a petition to call a special membership meeting, specifically to vote on the wording of the proxies. 

The last option would be to file a lawsuit against the board, since it is violating both the state laws and the association's governing documents.  Consultation with an attorney specializing in community association law could be helpful.

Sam Dolnick is a homeowner representative on the Community Associations Institute's Board of Trustees and a member of the institute's Legislative Action Committee.  Readers can get their condominium questions answered by calling the Community Associations Institute at 299-1376 or sending questions to: Condominiums, Homes, San Diego Union-Tribune, P.O. Box 191, San Diego, CA 92112-4106.

Back to S.D. Union Tribune Article List