“Electronic Voting Does Not Eliminate the Need for Limited Proxies” – News-Press
Q: My condominium association recently held a vote to amend our bylaws. When the association sent out the notice of meeting, it mailed and e-mailed it to all owners. The notice stated the date of the meeting and that owners could vote on the amendments electronically. The association did not include a proxy with the notice. Owners who attended the meeting were allowed to vote in person if they had not already voted electronically. However, because there was no proxy sent out with the notice, the association did not receive enough votes, and the amendments did not pass. From reading your prior articles, it was my understanding that owners are permitted to vote by limited proxy on document amendments. Was the association required to send a proxy with the notice of meeting? (M.C., via e-mail)
A: Chapter 718, Florida Statutes, the Florida Condominium Act, discusses the use of proxies by unit owners at membership meetings. Most condominium documents likewise provide that owners can vote either in person at a membership meeting or by proxy. However, the Condominium Act does not specifically require that a proxy be included with the notice of meeting.
Specifically, Section 718.112(2)(b) of the Florida Condominium Act governs the use of proxies by unit owners in residential condominiums. The statute provides that while unit owners may not vote by general proxy, they may vote by limited proxy, which must substantially conform to the form adopted by the Division of Condominiums, Timeshares, and Mobile Homes. Limited proxies are required for any substantive vote taken by the association. Such votes include amending the condominium documents, waiving or reducing reserves, waiving the financial reporting requirements, or any other matter where a unit owner vote is permitted or required by the Florida Condominium Act or the condominium documents. General proxies may be used only to establish a quorum or to vote on non-substantive matters, such as approving minutes or adjourning the meeting.
While the Division has promulgated the form for limited proxies to be used by condominium associations, there is no statutory requirement that a proxy be mailed with the notice of meeting. That said, it is good practice for associations to include a limited proxy form with the notice of meeting to encourage owner participation.
I note that your association used electronic voting for this meeting. Section 718.128 of the Florida Condominium Act authorizes electronic voting if the association’s board of directors has adopted a resolution permitting it. Even where electronic voting is authorized, unit owners may still attend the meeting and vote in person or vote by limited proxy.
As such, it does not appear that the association improperly conducted the subject meeting. The failure to include a limited proxy to allow owners an additional means of participating may have led to insufficient participation and amendments’ failure to pass. If the association wishes to reconsider the amendments, it may do so at a newly called membership meeting. It would be advisable to include a limited proxy with the notice of meeting, as well as to allow unit owners to vote electronically or in person at the meeting.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.
