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CONDO Q&A

Were Proxies Used in Election Valid or Had They Expired?

April 25, 1999|JAN HICKENBOTTOM | SPECIAL TO THE TIMES

Question: Our community association held our annual election eight months ago. We did not have a quorum present but the manager conducted the meeting. She said that she would use proxies from previous meetings to have enough proxies to make the meeting legal.

Our bylaws state that a proxy is valid for 11 months. But the manager said a proxy may be used for four years for future meetings or elections.

If our meeting was not a legal meeting, is this current board of directors a duly elected board?

Answer: From the information in your letter, I can see why you are concerned about the election procedure. State law differs from some of the information that your manager provided.

In my opinion, if the association had proxies on file from previous meetings, those proxies should have been registered at that meeting to show evidence of a quorum. The manager should have had them with her so there was no question about the validity of the proxies.

If the "old" proxies did not state on the proxy form that they were valid for three years, then they should not have been used for this election.

Corporations Code Section 7613 (b) states: "No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy, except that the maximum term of any proxy shall be three years from the date of execution." If your manager said it was four years, she is misinformed.

You need to quickly obtain legal advice, providing copies of the proxy and any other meeting materials to an attorney if you want to contest the election. Corporations Code 7527 states:

"An action challenging the validity of any election, appointment or removal of a director or directors must be commenced within nine months after the election, appointment or removal.

"If no such action is commenced, in the absence of fraud, any election, appointment or removal of a director is conclusively presumed valid nine months thereafter."

Your attorney can explain Corporations Code 7616 and the legal procedure for challenging the election.

It's Illegal to Close Meetings of the Board

Q: A notice on our association's bulletin board states that our board meetings occur once a month and that the meetings are only for board members.

Homeowner suggestions, comments or complaints are to be submitted in writing one week in advance for consideration at the next board meeting.

For the last 25 years, the board meetings have been open. Isn't this new rule a bit irregular, or is it illegal?

A: It is illegal to have closed board meetings. I've written about this many times, but I know there are boards who don't read my column or don't care what the law says.

I agree with most of what the notice states. That is, if I give the board the benefit of the doubt and read between the lines.

Perhaps your board is not excluding owners from attending but simply trying to explain that the meeting is for the purpose of conducting board matters. Yes, board meetings are only for the board; however, owners can attend as spectators, and owners who wish to address the board must be allowed to do so within specified time limits adopted by the board.

California Civil Code 1363.05 is very specific about the definition of a meeting, the requirement for homeowner input and members' access to the minutes of a meeting.

All meetings are open to the members except executive (closed) sessions of the board. Executive sessions may be held to consider litigation, matters relating to formation of contracts with third parties, personnel matters or member discipline.

A member who may be subject to a monetary penalty or other form of discipline is entitled to attend the portion of the executive session dealing with his or her disciplinary hearing.

I agree with your association's statement that, unless an owner notifies the board in writing in advance of the meeting, the owner should not expect an answer or a response from the board at the time that he or she addresses the board.

If you want an item to be placed on the board agenda for consideration, you should notify the board in advance in writing and keep a copy for your records. The board may decide not to put your topic on the agenda, but you still have the right to talk about the matter in the open forum portion of the meeting. You can also write again and attend the next meeting.

Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers. She selects questions of general interest for the column and regrets that she cannot respond to all questions received. Send questions to: Condo Q&A, Box 5068, Thousand Oaks, CA 91360.

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