Question: We have been having a debate in our HOA about the use of general and limited proxies. We understand from your January 27, 2013 column that for condominiums, general proxies cannot be used. Is this the same rule for homeowners’ associations? Our proxy states that the proxyholder “has the authority to vote and act for me to the same extent that I would if personally present.” The proxy also authorizes the holder of the proxy to “cast my ballot in the Director’s Election.” Is this legal? E.P. (via e-mail)
Answer: Absent a contrary provision in your bylaws, yes.
This is one area where the laws applicable to condominiums and homeowners’ associations are very different. In the condominium context, proxies cannot be used in the election of directors. Absentee unit owners may vote on other matters (reserve and audit waivers, rollover of surplus funds, etc.) only through a “limited proxy”, sometimes called a “directed proxy”, which is in essence an “absentee ballot.” In the condominium context, general proxies may only be used to establish a quorum, and for voting on non-substantive and procedural items, such as the approval of minutes.
In the HOA context, the rules are much different. First, the Florida Homeowners’ Association Act permits a “condominium-style” election of directors (through use of secret ballots), if authorized by the bylaws. In such cases, it would not be appropriate to use proxies in the election. Absent such a provision, the election of directors in homeowners’ association is conducted in the same manner as all other business of the association.
Section 720.306(8) of the Florida Homeowners’ Association Act simply provides that “members have the right, unless otherwise provided in this subsection or the governing documents, to vote in person or by proxy.” Accordingly, and again recognizing that the specific bylaws will control the ultimate answer, there is no prohibition in the law against using general proxies at the annual meeting of a homeowners’ association both in the election of directors and voting on other items of business which may properly come before the members.