Condo talk: Using proxies in association elections

For one reason or another, members of an association may be unable to personally attend an annual meeting held to elect the board. A member who is unable to attend the annual meeting may still participate in the election by use of a proxy.

In a condominium or incorporated homeowners association, a member may vote by proxy unless the association’s declaration or bylaws provide otherwise. A proxy is a written document that a member of an association gives to another person authorizing the “proxy holder” to vote in the place of the member who cannot attend a meeting in person.

The proxy authorizes the proxy holder to attend the meeting and to complete and cast a ballot on behalf of the absent member. Note that a proxy is not an absentee ballot or a substitute for a ballot. Rather, a proxy creates what is known as an “agency relationship” between the absent member and the proxy holder. The absent owner needs to deliver the proxy to their designated proxy, or to the secretary of the association if that is what the association requires. Since the proxy holder needs to attend the annual meeting to cast a ballot, the owner giving a proxy needs to make sure the proxy holder will be present.

To be valid, a proxy simply must be in writing, dated and signed by the absent member. A proxy is invalid after eleven months from the date of its execution, unless the proxy states otherwise.

A proxy must be given to a specific individual. That individual must be named in the proxy (for example, “John Smith”), or must be identifiable by use of a clearly defined title or description (for example, “president of the association”). The proxy should also identify a secondary proxy holder in the event the primary proxy named in the proxy is not present at the meeting. Many proxies provide that if the member fails to designate a proxy holder, or if the proxy holder is not present at the annual meeting, then the secretary of the association serves as the secondary proxy holder.

A proxy can be used to direct the proxy holder to cast the absent member’s vote in the election according to the specific instructions set forth in the proxy, or it can permit the proxy holder to vote how he deems fit at his own discretion.

Generally, any person can be designated as the proxy holder. However, the declaration or bylaws of the association can restrict to whom a proxy can be given. For example, the governing documents could provide that proxies may only be given to another member of the association.

A proxy can generally be revoked if the person who gave the proxy attends the election meeting, or if the absent member sends a letter to the board revoking the proxy. Moreover, a later dated proxy generally revokes an earlier dated proxy, but it is preferable that the later dated proxy expressly rescind any prior proxy.

There are certain rules applicable to proxies in a condominium. Proxies that are “distributed” by the board must give unit owners the opportunity to designate any person as the proxy holder. Therefore, if a proxy is issued by the board that includes the preprinted name of a proxy holder (for example, the “secretary of the association”), the proxy must also include a blank line to permit the unit owner to name a different proxy holder. A proxy must also give the unit owner the opportunity to express a preference for any of the known candidates for the board or to write in a name.

Disputes concerning the validity of proxies should be resolved by election inspectors appointed by the board, and it is safer to err on the side of validity so as not to disenfranchise any member of the association. And, frankly, it’s easier to strike a vote if it is later determined that a proxy was invalid than to go back and have a vote cast.

Voting in an association is an important right. The proper use of proxies permits absent members to participate in elections, and can be critical to a successful election. Frequently, the establishment of a quorum, and the ability to proceed with an annual meeting at all, turns on the number of members present by proxy.

Ÿ David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.