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Using Proxies at Membership Meetings

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Q: Could you please clarify the purpose of a proxy at a condominium association meeting? (M.G., via e-mail).

A: A proxy is a document that allows an owner to designate another person to attend a meeting and to vote on the owner’s behalf.

There are two types of proxies: limited and general. On a limited proxy, an owner specifies how they wish to vote, and the proxyholder must cast the owner’s vote as indicated on the limited proxy. A general proxy is more open-ended – the owner does not specify their vote; instead, the proxyholder has the discrepancy to vote for them on parliamentary procedure or other matters that do not require a limited proxy.

Pursuant to Section 718.112(2)(b)3 of the Condominium Act, a proxy is effective only for the specific meeting for which it was originally given and any lawfully adjourned meetings thereof. A proxy is valid for up to 90 days after the date of the first meeting for which it was given. Each proxy is revocable at any time at the pleasure of the unit owner executing it.

As a general rule, however, pursuant to Section 718.112(2)(b)2 of the Condominium Act, condominium owners may not vote by general proxy, but may vote by limited proxy.

In homeowners’ associations, owners have the right, unless otherwise provided in Section 720.306(8) of the Homeowners’ Association Act, or in the association’s governing documents, to vote in person or by proxy.

Q: I do not rent my condominium unit but have friends and family stay one to three weeks in my unit. Can the association regulate the number of days that my friends and family can stay? Our board adopted a rule stating that friends can stay for only seven days and family for ten days. This was not in the original documents when I bought my unit. Can I be grandfathered on this issue? (J.K., via e-mail)

A: The condominium documents, including the declaration of condominium and the bylaws, should provide guidance regarding the board’s authority to adopt and amend rules regarding the use of the units. Section 718.112(2)(c)1 of the Condominium Act requires written notice of a meeting at which an amendment to rules regarding unit use will be considered, must be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property at least 14 days before the meeting and evidence of compliance with this 14-day notice requirement must be made by an affidavit executed by the person providing the notice and filed with the official records of the association. Therefore, assuming the board of directors had the authority to adopt the rule in question and it was adopted in a procedurally correct manner, it would likely be enforceable.

With regard to grandfathering, generally when an association adopts new rules, the rules applies to all owners and occupants and no one is grandfathered. Black’s Law Dictionary defines the “grandfather clause” as “an exception to a restriction that allows all those already doing something to continue doing it even if they would be stopped by the new restriction.” In essence, grandfathering allows an existing operation or conduct to legally continue when a new operation or conduct would be illegal. Surprisingly, there is little case law in Florida directly on point.

However, in the landmark Florida Supreme Court case of Woodside Village Condo. Ass’n, Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002), a condominium association amended its declaration to seriously limit leasing rights. The Supreme Court ultimately found that there was no “vested right” to lease and that unit owners in a condominium take title knowing that their legal rights can be changed by an amendment to the condominium documents. The legislature subsequently amended the Condominium Act to limit the ability of condominium associations to amend the declaration regarding leasing rights. However, the holding of the case, the properly adopted amendments apply to all owners, is still generally applicable.

 

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