In the context of homeowners and condominium associations, a proxy is a document authorizing a person to act or vote on behalf of an owner who is unable to attend a meeting. Proxies are most commonly used at board elections and owners wishing to run for a seat on the board of directors will often times go door-to-door collecting proxies ahead of elections. Although proxies are a powerful tool for board elections, both the Illinois Condominium Property Act (the Condo Act) and the Common Interest Community Association Act (CICAA) contain strict requirements for proxies. While proxies do not need to be on any specific form, if a proxy does not meet these minimum requirements set forth in the Condo Act, CICAA or the association’s governing documents, then the proxy must be deemed invalid and the vote associated with the proxy should not be counted.
Specifically, Section 18(b)(9)(A) of the Condo Act provides that unless the Articles of Incorporation or the By-Laws of an Association provide otherwise, “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 the proxy must: (1) be in writing; (2) signed and dated by the owner executing the proxy; and (3) is automatically invalid 11 months after the execution date, unless otherwise stated.
If the board opts to distribute its own proxy forms prior to an election, Section 18(a)(18) of the Condo Act further requires that the proxy must give owners “the opportunity to express a preference for any of the known candidates for the board or to write in a name.”
Section 1-25(h-5)(1) of CICAA has similar requirements as the Condo Act and provides that an owner may vote, “by proxy executed in writing by the member or by his or her duly authorized attorney in fact, provided, however, that the proxy bears the date of execution. Unless the community instruments or the written proxy itself provide otherwise, proxies will not be valid for more than 11 months after the date of its execution.”
Once a proxy is submitted to the board, it is best practice for the board or the board’s managing agent to carefully examine each proxy to ensure that it meets the requirements of the Condo Act or CICAA prior to counting the vote associated with the proxy. It is also important to review the Association’s governing documents to confirm any additional requirements for proxies are also met. When examining proxies, the board should also confirm that the proxy is signed by the record owner of the unit and not a non-owner occupant of the unit. Further, the board should ensure that the person acting as an owner’s proxy at a meeting is the same individual identified on the proxy form. Finally, the board should ensure that the proxy holder votes according to the owner’s preference if such is expressed on the proxy form.
Proxies are revocable. That means an owner can change his or her mind and issue a new proxy which would effectively invalidate the earlier executed proxy. An owner can also appear in person at the meeting and cast a ballot to invalidate a proxy.
Please contact your Tressler attorney if you have any questions or concerns about proxies used in your association.