Participation by Proxy – An Option for Socially Distant HOAs, Condominiums and Cooperative Associations
In these precarious times, attending a meeting of your cooperative, condominium or homeowners’ association (HOA) may be the last thing on your “to do” list. However, your community is important to you, and on some issues, your vote needs to be heard. The most common method of participating at a meeting, without actually being there, is through a proxy.
“Proxy” is a fancy word for agent – someone who is authorized to act as a substitute for another. A proxy form is the document by which the agent (aka the “proxy holder”) is named and appointed. In the context of cooperative, condominium and homeowners’ association meetings, proxy forms come in two types: general and limited. A general proxy allows the proxy holder to vote however she sees fit on any matter that comes up at the meeting. A limited proxy lists the issues on which the proxy holder may vote and instructs her how to vote.
In Florida corporations not-for-profit, the use of proxies (whether limited or general) by members is generally authorized if not prohibited by the Bylaws or Articles of Incorporation. Section 617.0721(2), Florida Statutes. This rule holds true with homeowners’ associations. Section 720.306(8) states that members “have the right, unless otherwise provided…in the governing documents, to vote in person or by proxy.” In order to be valid, an HOA proxy form “must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy.” Id.
The use of proxies in condominiums and cooperatives is more limited. First, proxies may not, generally, be used to elect board members. Sections 718.112(2) and 719.106(1), Florida Statutes. This prohibition can be lifted by the affirmative vote of a majority of the total voting interest in a cooperative association, or in a condominium with ten or fewer units. Id. Second, general proxies may not be used except in limited circumstances, such as to establish a quorum. Id. Third, the proxy form must substantially conform to the form adopted by the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (DBPR Form CO 6000-7). Id.
If you are interested in utilizing proxies for an upcoming meeting, bear in mind that a proxy form is not generally valid for a period longer than 90 days after the date of the first meeting for which it was given. Sections 718.112(2), 719.106(1) and 720.303(6), Florida Statutes. Also, you will need to check the Bylaws and Articles of Incorporation to ensure that any additional requirements are met, such as delivering a copy of the proxy form to the association’s Secretary in order to allow him to keep track of how many members will be attending by proxy. Finally, while association members may use proxies as outlined above, directors may not use them to vote at board meetings. Sections 718.111(1), 719.104(8) and 720.303(2).
These are indeed strange times for community associations. While large in-person meetings may be avoided for the time being, that does not mean that members lack the ability to participate or ensure their voice, and their vote, is heard.