—Owner In Absentia
“The definition of a proxy under the New Jersey Non-Profit Corporation Law (“N.J.S.A. 15A:5-18) is very broad and in essence only requires the authority to vote to be writing and it may also be given by “telegram, cable or its equivalent.” Theoretically, the governing documents of the condominium could restrict the form or scope of the proxy, but that is not the usual case. On the other hand, a power of attorney, if properly drafted, would normally delegate all of the son’s membership rights to his father, which would include the right to serve on committees and on the board subject to any restrictions or prohibitions in the association’s governing documents.
“The foregoing delegation is consistent with the right of corporations, fiduciaries, partnerships and other legal entities to designate an individual to represent them in all association matters. The association’s bylaws should be examined to determine whether or not they address the assignment of an individual’s membership rights by power of attorney. If not, it would be good practice for the association to amend its bylaws to permit such practice. Such provisions are increasingly common in state-of-the-art bylaws, especially in the case of resident sponsors or other family members.
“Finally, in response to the concern expressed about a non-owner not having the same financial concerns or common interests of an owner, I would point out that it is common for condominium association bylaws to permit tenants to be associate members of a condominium association but with an express provision that they cannot have any rights to vote, presumably because of these same concerns. However, it is my view that if a tenant were given a proxy or a power of attorney by the unit owner, such a bylaw provision would be preempted and the provisions of the proxy or power of attorney would govern.”