Condo Law Watch

May Owners Voting By Proxy Use Text Messages or Electronic Means to Vote?

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Admittedly, the Illinois Condominium Property Act has been rather slow in recognizing the nearly-uniform use of modern technologies in daily life.  Unit owners are quite likely to check their email inboxes more than their mailbox and the instant pace of email and text messages has become an accepted norm.

However, this does not necessarily mean that owners may use technology to address their association obligations.  Owners may (usually) cast their votes for the annual owners meeting using a proxy, or a written and signed delegation of their voting right to another owner entitled to vote.

Per 18(b)(9)(A) of the Illinois Condominium Property Act, “unless the Articles of Incorporation or the bylaws otherwise provide, and except as provided in subparagraph (B) of this paragraph (9) in connection with board elections, a unit owner may vote by proxy executed in writing by the unit owner or by his duly authorized attorney in fact; that the proxy must bear the date of execution and, unless the condominium instruments or the written proxy itself provide otherwise, is invalid after 11 months from the date of its execution…”

This means that a proxy needs to be in writing, show the date it was executed (meaning “signed”), and that it then becomes invalid automatically 11 months after the execution date unless revoked earlier.

Could an email or text message accomplish much of this?  Potentially, but there isn’t necessarily a way that the law or courts have recognized that accomplishes the signature.  There are many arguments that can be made in favor of email or text message proxies, but these are arguments that would need to be tested in court to confirm their viability.  Without specific language in the Act to confirm electronic means, the safe bet is paper.  Most boards will opt to distribute proxies (being sure that they comply with the requirements in the Act that board-distributed proxies contain the requirements in 18(a)(18) that the proxy allow the proxy-giver to designate candidate preference or write in a candidate’s name) and use a standard form to avoid any inconsistencies or attempts at ballot-stuffing.

With the recent changes for email notice for board meetings coming into effect January 1, 2015, we may be seeing the beginning of a new era in a more-tech savvy Condo Act, but only time (and subsequent amendment or court decision) will tell.

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