Unless membership approval or consent is solicited by a written ballot or by the unanimous written consent of all members of the association, the members of a homeowners association may take valid action only at a duly held or called meeting at which a quorum is present. Allowing association members to exercise their vote at a membership meeting by proxy is an acceptable means to obtain membership votes. Membership voting by proxy is a written authorization signed by a member or the member’s attorney-in-fact that gives another person or entity the power to vote on behalf of the issuing member.
Membership voting by proxy rights facilitate the establishment of a necessary quorum at a membership meeting and provide a mechanism for those members who are not able to attend the meeting to exercise their vote. Thus, in common interest developments where there are large numbers of owners who only use their separate interest on a part time basis (i.e. resort or vacation areas), or where there is a substantial number of unimproved lots and thus, non-resident owners, the use of proxies will be of particular importance.
While using proxies creates an economical way for association members to vote and facilitates the establishment of a quorum, there are some arguments against allowing the use of proxies. Some opponents argue that the use of proxy voting tends to protect the incumbent management because it is the association’s board of directors that generally solicits the members’ votes by proxy. Additionally, the association’s board is able to cover the expense of soliciting proxies by the use of association funds. Candidates or association members that are not part of the current management typically have to pay the expenses of seeking proxies from other members out of their own funds, and are thus less likely to do so. Thus, the process may tend to exacerbate political subdivisions with the community and facilitate the re-election of existing management. Using proxies also shifts the timing of the decision-making process because members tend to make their voting decisions during the solicitation rather than at the membership meeting, and as a result, they are more likely to make a decision on the basis of arguments presented by the proxy solicitor instead of waiting for a full debate of the issues at the meeting. Further, unless the issuer of the proxy indicates how its vote is to be cast, the proxy holder is, in effect, given a blank check, and there is no assurance that the proxy holder will vote as represented.
Unless prohibited by an association’s governing documents, members of homeowners associations typically enjoy the right to exercise their vote by proxy and any amendment of an association’s articles, bylaws, or other governing documents that repeals, restricts, creates, or expands membership voting by proxy rights must be approved by the association’s members in accordance with applicable statutory procedures and relevant provisions contained in the association’s governing documents.