Reader Questions - Proxy Form, Majority Member Votes

Mr. Richardson, 

I very much enjoy your column. Can you recommend a source for a proxy form which is valid under California law for an HOA board of directors recall election, and if successful, for the election of new board members.

Thank you,

D.Q., Santee

Dear D.Q.,

There is no official form for a proxy. Under Civil Code 5130, only a member can hold another member’s proxy, and the proxy must state the intention to grant voting rights to another member of the association. A proxy can be written on a scrap of paper, and still be valid.

A proxy to be used on a recall vote must state that purpose, under Corporations Code 7613(g).

Proxies, due to the very minimal requirements, are often abused, and Inspectors of Election have few validation tools short of calling each proxy giver to confirm the validity of each one. With the 30 day advance written ballot process, proxies are unnecessary – members can vote for themselves. I routinely recommend associations amend their bylaws to ban proxies except for the purpose of attaining quorum. This eliminates one of the most common election fraud issues – proxy abuse. Until the Legislature moves to either ban proxies or increase their authenticity requirements, proxies in associations are, in a word, trouble.

Thanks for your question,
Kelly

Dear Kelly,

I am on the board of a small HOA — there are only 12 units. I read your column each week, and find the questions/answers very helpful. I have a question that I have not seen addressed in previous columns.

I know that a super majority is no longer needed to pass a special assessment. I also understand that you can accomplish this either by mail-in ballot or at a meeting called for that purpose. My question: If a majority of homeowners (in our case 7) attend such a meeting, can the special assessment be passed if 4 of those 7 attendees vote yes — or do all 7 (the majority of homeowners) have to vote yes in order for it to pass?

Would really appreciate your input on this,

D.S., Costa Mesa

Dear D.S.,

Not having the opportunity to review your governing documents, I am assuming that they do not specifically answer this question. Under Civil Code 5605(b), a special assessment in a total amount of more than 5% of the HOA’s annual budgeted total expenses requires approval by a vote of a majority of a quorum of the members. Section (c) of the same section defines “quorum” as more than 50% of the members, so at least 7 of your 12 members would need to be voting upon the assessment issue.

What if 2 members abstained, 3 voted yes and 2 voted no? Civil Code 4070 answers this question, by requiring that if a “majority of a quorum” is required, the votes in favor must constitute a majority of the required quorum, not just a majority of those voting. So, to pass an assessment, 4 “yes” votes are required of the minimum 7 members participating.

If the assessment is approved, Civil Code 5615 requires 30 days individual notification to each member (not a bulletin board posting) before the assessment is due.

Thanks,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.