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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 88627
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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I belong to a homeowners association in New York State. Proxy

Resolved Question:

I belong to a homeowners' association in New York State. Proxy voting was allowed for the first time, last year.

Yesterday I requested, and managed to obtain, the board-produced proxy ballot for this year. The board's secretary, who provided the form upon my request, told me in no uncertain terms that everyone who votes by proxy this year MUST use this form in order for the board to be accountable for the proxies. Proxies are sent only upon request, and when they are sent, the owner's name is XXXXX XXXXX on the proxy.

In part, it says "I, ........residing at.....NY...am a member........... Since I am unable to be present at the annual meeting ............, I grant the right to present my vote to............who is also a member......and who resides at .....................
Further, I declare that I wish my vote to be made as follows:"

The rest of the proxy is the ballot, and contains a vote on the budget, vote on a proposal to improve the playground, a vote to change the assessment collection process (which is actually a change to the Declaration, but that doesn't seem to matter), and for the election of four board members.

Below the ballot, "This right of proxy is granted only for the items listed above and is valid only for the votes taking place at the annual meeting on June 15, 2013."

At the end, a requirement for the proxy to be notarized.

I think this is an absentee ballot. If people are nominated for the board from the floor, which they historically are because the board does not seek people to run even if there are unfilled positions (there are 2 this year), the proxy carrier has no decision-making option. Further, this ballot deprives the proxy giver of the right to a secret ballot.

The bylaws say "Members unable to attend a meeting at which Directors of the Association are to be elected shall be entitled to file an absentee ballot if so provided by the Board of Directors, or may vote by a proxy which shall be in writing and shall be filed with the Secretary of the Association."

In April 2012, the board's lawyer wrote, "The Board will have clear guidelines and will promulgate an official proxy form to be posted on the HLPA website:
a. the proxies will claearly identify the owner and his/her address within the development
b. the proxy will require a notary public as witness
c. the proxy may be delivered by any reasoable means to the Board shall elect to receive, including electronic transmission
d. timing for proxy delivery shall include any time right up to the place and time of the meeting
e. all proxies are subject to subsequent verification by the Board and/or the counters, even after the date of the meeting, as circumstances may require-only the Board, or 10% of the total membership, may call for verification
f. the proxy is assignable to any agent the owner wishes to designate
g. the proxy may be general or limited, in accordance with the specific wishes of the owner, and the Bylaws of the HLPA."

In my opinion, the board is not complying with what its Bylaws or its lawyer specify. And, by the form itself, it has not even produced a proxy ballot.

Your thoughts?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

The violation here is that the proxy you describe they are using is not "general or limited, in accordance with the specific wishes of the owner and bylaws of the HLPA." This means that in restricting you to only what is on the ballot and not containing a place for you to grant your proxy the right to vote in your behalf on anything from the floor, they are violating the proxy rules if your bylaws provide for general proxies.

If the board will not change their proxy ballot they are using and you call the board attorney to get them to work to change the proxy form, then your next recourse is going to be that you have to file a petition for declaratory judgment to the court to get the court to order the board to comply with their proxy bylaw and provide a proper proxy form for owners to use.



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Customer: replied 1 year ago.

 


 


Our bylaws don't speak to any type of proxy, either "general or limited." They say simply that "members may vote by a proxy which shall be in writing and shall be filed with the Secretary of the Association."


 


The proxy I obtained limits itself by saying "This right of proxy is granted only for the items listed above...."


 


I question that the Board can require members to use only their proxy; can we set up our own proxy forms, as long as they meet the requirements spelled out by the Board's lawyer? (And I don't think that even this meeting his requirements is valid, since I am just one of two members in the Association who have seen them)


 


I also question that the Board can limit the responsibility of the proxy carrier to exactly that, that of a carrier. I thought that the giver of the proxy could cede some or all responsibility to the carrier, allowing, for example, him or her to choose candidates for the board after hearing them speak as to how they would represent members if elected. If the proxy carrier is just that, what is the value of a proxy, and why not simply issue absentee ballots?


 


I am disturbed that the Board didn't publish the proxy for people to download (as their lawyer specified), and that they announced that proxies could be requested only six days before the meeting.


 


Your reply says that I must call the Board lawyer, and that if this path proves unsuccessful, that I must file a petition etc. We are just four days from the election, and my guess is that I could do little of what you suggest in that timeframe. These people boxed the members into the corner; I didn't. The way I see it, neither the other members nor I should have to put up with this kind of behavior. Do you have any other suggestions?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

I understand what is going on, but I was not aware that your time was so short. The board must follow whatever the bylaws dictate regarding notice time and the proxy. If the bylaws do not specify how the proxy needs to be conducted the board sets those parameters, as the law does not specify exactly how the proxy is to be conducted.

You would have to follow the legal process, if you do not have time to notify the board lawyer and want to stop this election until the proxy matter is resolved, you have to file a petition for declaratory judgment and ask the court to rule on the sufficiency of the proxy and together with that suit you would file for a motion for temporary restraining order/injunction and ask the court to stop the election until they rule on the declaratory judgment.

Going to court now with the short time before the election would be your only other legal option aside from letting the election occur and suing to invalidate it after the fact if you cannot get the board attorney to work with you to fix the problem before the election.
Customer: replied 1 year ago.

If I were to speak with the board's lawyer, where would I begin, and how could I articulate the issue? Without a lawyer, I'm sure he would try, and would succeed, because I don't think or speak legalese, to make mincemeat out of me. I have tried, unsuccessfully, to find a lawyer locally who could help with association issues, so would have no support.

Expert:  Law Educator, Esq. replied 1 year ago.
You just articulated the issue above to me, you would articulate it the same way to him. Bring up what he said about the proxy and that the board is not following that process regarding the proxy and is not giving you the chance to exercise your right to vote by proxy.

You need a real estate attorney as they are the ones who handle HOA issues.
Customer: replied 1 year ago.

Thank you. I had a really negative experience with the board attorney, so I may send him an email rather than get involved in a verbal joust. And I have texted a friend who just brought property in the Association to forward me the name of the real estate attorney who represented him, and who my friend speaks highly of.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response. Unfortunately, the information I provided you above is your legal recourse and your options to deal with this. I wish I had some more recourses for you, but those are constrained by the laws and bylaws. You can weigh your options in determining which way you want to pursue this.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 88627
Experience: Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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