Proxies
QUESTION: I live in a condominium association which has a management company. Every year they have an election of officersfor which the management company sends out proxies to owners. Some owners on their own have taken the official proxy and made up one of their own and mailed them to the homeowners and they have marked who they want the homeowners to vote for. Can they do this and is it legal?
RESPONSE:
There is no legal requirement that proxies used in an Association meeting must be the official form distributed by the Board or by the Association Manager. So long as the proxy complies with the requirements of law, and with any requirements contained in the Association's governing documents, it should be accepted and counted as a valid vote, even if it is a "homemade" proxy.
Greg Montero
Most Association governing documents, particularly the Bylaws, contain some requirements that address what must be or what cannot be contained in the proxy. In addition to whatever those requirements may be, Condo Associations should note that the Virginia Condo Act contains some additional requirements regarding proxies (see Sec. 55-79.77(D)). The Property Owner Association Act (which governs POAs or HOAs) does not contain any specific requirements regarding proxies, but if the Association is incorporated it is subject to the Virginia NonStock Corporation Act, which has some rules relating to proxies (see Sec. 13.1-847).
As a practical matter, most "homemade" proxies contain some flaw that violates one of the above-referenced laws. It is therefore strongly advised that owners use the proxy form provided, and that Associations seek the advice of legal counsel to review their proxy forms before they are used in any meeting even if prepared by your association manager.