Disputes Regarding Proxies in HOAs and Condo Associations

The Use of Proxies in Community Associations

Today, disputes involving an association’s failure to properly conduct elections, including the proper use of proxies in elections, may be filed either in a court of competent jurisdiction or arbitrated by the Florida Department of Business and Professional Regulation, Division of Condominiums, Timeshares and Mobile Homes, Arbitration Section.  However, prior to July 1, 2021, all such election disputes were subject to mandatory arbitration with the Division’s Arbitration Section, and its decisions therefore represent a significant source of legal authority regarding the use of proxies.  Although the Division’s arbitration decisions are not binding on courts of law, they can be very persuasive and, thus, worth examining.  Some disputes related to proxies that have been decided by arbitrators are explored below. 

Are community associations required to provide proxy forms to members?

In Miller v. Crescent Club HOA, Inc., Arb. Case No. 2011-03-0323, Summary Final Order (Dec. 20, 2011), the petitioner alleged that the proxy form provided by the Association was invalid because it did not contain a “write-in” blank space to allow him to appoint a proxy other than the secretary of the association.  The arbitrator, however, noted that the proxy met the requirements of the statute, and that the petitioner had not cited any legal authority that required the association to provide members a proxy form with a “write-in” option or, for that matter, that required the association to provide a proxy form at all to its members.  The arbitrator declined to invalidate the proxies on the basis asserted.

Are members required to use the proxy forms prepared by their association?

In Miller, cited above, the arbitrator noted that the petitioner had not shown that the association had prevented him from using his own proxy form rather than the one sent to him by the association. This suggests that, because the right to vote by proxy is a statutory right, the association could not have required the petitioner to use only its proxy form. 

Does “pre-marking” a proxy form automatically make it invalid?

In Lerner v. The Preserve at Ibis HOA, Inc., Arb. Case No. 2014-03-0393, Summary Final Order (Oct. 30, 2014), the petitioner asserted that proxies submitted to the association were invalid because they were pre-marked.  The arbitrator disagreed, however, noting that there was no statute, administrative rule, or provision in the association’s governing documents that prohibited pre-marked proxies.       

Can an association reject proxies not received in advance of the meeting?

In Castro v. Snapper Creek Townhouse HOA, Inc., Arb. Case No. 2009-01-2882, Summary Final Order (Jul. 10, 2009), the arbitrator determined that, because the right to vote by proxy is a statutory right, the association could not reject proxies submitted at the meeting merely because they were not filed with the secretary in advance as allegedly required by the association’s bylaws. 

Because each case, including the arbitration cases discussed above, depends on the facts and circumstances as well as the association’s governing documents, it is important to consult with an attorney well-versed in community association law when a dispute arises related to the proper use of proxies.