Q: We recently held our annual homeowners’ association (HOA) meeting, and two homeowners sent relatives to the meeting who were not residents and were not listed as owners on the deed to any property in our community. One of the individuals had a temporary power of attorney for the meeting. Is it legal for these individuals to vote at our annual meeting, and if so, to what extent may they participate in the meetings?
A: In general, members of an HOA may vote at association meetings either in person or by appointing someone else as their “proxy” who will be physically present at the meeting to cast the member’s vote.
You may have heard of or used a proxy form, which is simply a document by which someone assigns their voting authority to someone else. The person receiving the voting authority is referred to as a “proxy.” There is no requirement in North Carolina that a proxy be a member of the association, but a non-member may not appear at a meeting and cast the vote of a member without a proper proxy form.
North Carolina law is very broad in defining what constitutes an effective proxy form. Basically, anything in writing by which the association may ascertain that the member intends to appoint someone as his or her proxy is sufficient. It can be sent by e-mail or written on the back of a cocktail napkin.
The law even allows a member to appoint a proxy “by any kind of telephonic transmission, even if not accompanied by written communication, under circumstances … from which the nonprofit corporation can reasonably assume that the appointment was made or authorized by the member.” You also need to check your articles of incorporation and bylaws to see if there are any provisions that might affect voting rights or the appointment of proxies.
If a non-member appears at a member meeting without a proxy form, but instead with a power of attorney from a member, you should read the power of attorney to see if it contains language that may be reasonably interpreted to mean this person has the authority to cast votes or make decisions on behalf of the member.
If it does, you should allow the person to vote on behalf of the owner, but take note that in North Carolina, the instrument creating a power of attorney must be recorded with the county Register of Deeds office if the person giving it is incapacitated.
If your corporate secretary or board of directors has determined that a non-member at your meeting has the authority to cast votes on behalf of a member, either through a proxy appointment form or a power of attorney, then that person should be granted the same privileges as all other members at the meeting such as speaking, asking questions and bringing motions.