HOA Quorum established by Proxy - define proxy for me

[rss334]

Single Family Homes HOA

Our bylaws specifically state a definition for quorum with respect to any special meeting of the members a quorum shall be deemed to exist if members of the association entitled to case over 50% of all of the votes of the association are present, in person or by proxy, at such meeting.

 

The members argument is that because this is specified in the bylaw then neither Roberts Rule nor state statute apply.  The bylaws do not refer to Roberts Rule in any regard.  The HOA argument is based the above definition of a quorum and Roberts Rule that a quorum can only be established by those physically present and can not include proxies.  I simply do not understand how someone can arrive at this conclusion based on how the bylaw is written and have read through every post on this site which seems to concur the HOA is not correct in this case.   

 

I would like to confirm peoples understanding of "by proxy" however.  For simplicity sake lets use the above bylaws and assume the membership has 100 voters.   Using example A and B below how many are present for quorum?  I believe the answer is the same for both based on the definition of quorum states above, am I wrong?

A) 1 individual brings in 99 proxy forums - does the quorum consist of 1 at this moment or 100?

b) 50 people bring in 50 proxy forums, since the 50 people there already voting rights (1 vote) is the quorum 50 or is it 100?

 

Thank you

 

[Joshua Katz]

On 7/5/2024 at 2:02 PM, rss334 said:

The members argument is that because this is specified in the bylaw then neither Roberts Rule nor state statute apply.

Well, the member is right as far as RONR. Assuming it is your parliamentary authority (which is unclear), RONR applies only when your bylaws are silent on a question.

As for state statute, it will depend on exactly what the statute says, and how the courts have interpreted it. That is far beyond the scope of this forum.

On 7/5/2024 at 2:02 PM, rss334 said:

I would like to confirm peoples understanding of "by proxy" however.  For simplicity sake lets use the above bylaws and assume the membership has 100 voters.   Using example A and B below how many are present for quorum?  I believe the answer is the same for both based on the definition of quorum states above, am I wrong?

A) 1 individual brings in 99 proxy forums - does the quorum consist of 1 at this moment or 100?

b) 50 people bring in 50 proxy forums, since the 50 people there already voting rights (1 vote) is the quorum 50 or is it 100?

 

It seems to me you're asking the wrong question. A quorum is the number that must be present. Your organization chooses to define this, not by people, but by votes. (According to the rules in RONR, this wouldn't matter, since each person gets one vote. But your rules specify otherwise.) The quorum is always, then, enough votes being capable of being cast, in person or by proxy, equal to more than half the number of voters. You say there are 100 members. So you need 51 votes present. In A, the question isn't "what's the quorum" but, rather, are enough votes present? The answer is yes. In B, same thing, and yes, there are enough votes present. (That's all based on your summary of your bylaws. To be more definitive, I'd need to review them in full.)

[rss334]

On 7/5/2024 at 4:13 PM, Joshua Katz said:

Well, the member is right as far as RONR. Assuming it is your parliamentary authority (which is unclear), RONR applies only when your bylaws are silent on a question.

As for state statute, it will depend on exactly what the statute says, and how the courts have interpreted it. That is far beyond the scope of this forum.

It seems to me you're asking the wrong question. A quorum is the number that must be present. Your organization chooses to define this, not by people, but by votes. (According to the rules in RONR, this wouldn't matter, since each person gets one vote. But your rules specify otherwise.) The quorum is always, then, enough votes being capable of being cast, in person or by proxy, equal to more than half the number of voters. You say there are 100 members. So you need 51 votes present. In A, the question isn't "what's the quorum" but, rather, are enough votes present? The answer is yes. In B, same thing, and yes, there are enough votes present. (That's all based on your summary of your bylaws. To be more definitive, I'd need to review them in full.)

Joshua, thank you for this.  You brought up a good point in how I'm thinking about this and not asking the right question.   I agree with you on this when looking at it from the standpoint of votes represented and no physical people.   We are in a state that has no HOA regulation (Alabama), so my though is regardless of what state statute is it would not supersede the bylaw the same way as RONR would not supersede. 

[Joshua Katz]

On 7/5/2024 at 2:29 PM, rss334 said:

We are in a state that has no HOA regulation (Alabama), so my though is regardless of what state statute is it would not supersede the bylaw the same way as RONR would not supersede. 

I would disagree. To the extent it is applicable, state law will always supersede your bylaws, while your bylaws will always supersede RONR. The fact that there is no HOA regulation makes it likely, but not certain, that no state law is applicable.

[Richard Brown]

I agree with Mr. Katz. State law supersedes the bylaws and the bylaws supersede the provisions of RONR. We cannot tell you what your quorum number is without knowing how many members there are or what the total number of votes can be.. When they bylaws say the quorum is based on a majority of the members being present in person “or by proxy“, that means that every proxy that has been turned in causes that member to count as being present “by proxy” for quorum purposes. If 25 proxies have been turned in, then the 25 members who signed those proxies are considered present for quorum purposes. Such a provision is quite common in homeowner type associations. 

It’s important to keep a couple of things in mind, though. First, voting power may not be based directly on one man equals one vote. In homeowner associations, sometimes each unit is allowed one vote. If a unit has two owners, say a husband and wife, then the husband may get only a half Vote and the wife gets a half vote.  If one member happens to own three units, that member might be entitled to three votes.  Different homeowner associations and different state laws treat that differently.  So, in your case, it may not be correct to say that a majority of the members must be present. Technically, members representing a majority of the total possible votes of the association must be present. 

Another thing to keep in mind is that although state law supersedes the bylaws, many statutes governing corporations and homeowner associations include a provision that says “unless the bylaws provide otherwise . . . .”  That means the state law is a default provision that will control if your bylaws are silent, but if your bylaws do have a provision on that point, whatever your bylaws say will prevail.
 

[rss334]

Thanks Mr. Katz and Mr. Brown.  I feel confident that your answers are correct, of primary concern was whether a proxy form itself counted towards quorum and you both have confirmed this for me. I don't recall seeing any state law to the contrary but the HOA is a non profit corporation and I'll need to look again.  Mr. Brown I don't see anything in the bylaws similar to what you quoted however I appreciate the guidance on what to look for.  To both of you thank you for the quick answers and guidance, this forum is worth gold !