Q: My condominium association has been questioning when owners and board members can vote by proxy and the differences between a general and limited proxy. Can you explain when proxies can and should be used by either board members or unit owners when voting? (G.R., via e-mail)
A: The short answer to your question is that members of the board of directors cannot use proxies to vote at board meetings when the director is not in attendance at the meeting. However, unit owners can use proxies to participate at membership meetings they do not physically attend.
With respect to board members, Section 718.111(1)(b), of the Florida Condominium Act, Chapter 718, Florida Statutes, states in relevant part that directors may not vote by proxy or by secret ballot at board meetings, except that officers may be elected by secret ballot. As such, board members have to physically attend board meetings in order to vote and cannot use a proxy to vote at a board meeting they do not physically attend. However, Section 718.112(2)(b) of the Act states that board members can participate in board meetings via telephone, real-time video conferencing, or similar real-time electronic or video communication and votes casted by a member attending remotely, count as if they were physically present. Please note that a speakerphone or other device must be used so that the audio of the member attending remotely can be heard by all participants, including unit owners who are present for the board meeting. Therefore, board members cannot use a proxy to participate in a meeting they do not attend. They are permitted to attend meetings remotely. Further, as noted in the statute, board members cannot vote by secret ballot except for the election of officers. Otherwise, all votes must be cast in the open and how every board member votes must be recorded in the minutes of the board meeting.
With respect to unit owners, unit owners are permitted to participate in meetings by use of proxies. Section 718.112(2)(b)2, of the Act discusses the use of proxies by unit owners and states that except as specifically provided in the statute, unit owners may not vote by general proxy but may vote by a limited proxy which substantially conforms with the limited proxy form adopted by the Division of Condominiums, Timeshares, and Mobile Homes. A limited proxy must contain a specific statement of what the unit owner is voting on and how the unit owner is voting. A unit owner cannot vote on specific substantive questions by a general proxy. As stated in the Act, limited proxies are required to be used when voting on reserves, voting to waive or reduce financial reporting requirements, votes required to amend the condominium documents, or any other matter for which a vote of the unit owners is required. However, general proxies can be used for the purpose of establishing a quorum and for other matters for which a limited proxy is not specifically required.
Accordingly, given the limitations in the statute, a general proxy is, essentially, only useful for establishing quorum and non-substantive votes, such as, approval of minutes, adjournment, or continuance of meetings. There are also other specific limitations on the use of proxies, including that proxies are only valid for up to 90 days from the date of the first meeting for which the proxy was given. Additionally, unit owners may revoke a proxy at any time up to the point of the meeting where the proxy was given.
There may be additional limitations on the ability of the association to use proxies contained in the condominium documents and the condominium documents should be reviewed by the association to ensure that the use of proxies by the owners complies with both the Act and the condominium documents.