Q&A: Proxy Problems Q&A: Proxy Problems

Q I live in an over-55 active adult condo community in New Jersey. The condo is governed by a non-profit corporation in accordance with the master deed and bylaws. The bylaws are voted on by the members of the community. The board previously changed the bylaws after a vote of the community.

Here is my question. Consideration is now being given to changing the bylaws once again. I remember when the board changed the rules in the first place, the previous amendments eliminated proxy votes for consideration when the community votes in an election. It is my contention that the previous change, although rightly voted on by the community, violates the current law in New Jersey under the New Jersey General Statutes. In my opinion, it effectively disenfranchises those community members who cannot attend the meeting or choose not to do so, but still want to vote. Proxy voting is authorized under the non-profit act as well as in a community’s bylaws. The board can choose the form of proxy it wants to be used in an election. Proxy, in other words, literally means to step in the shoes of another. A proxy is not an actual vote but permission for someone to vote in the place of another. What are your comments as to my interpretation? Am I correct?

—Disenfranchised in Denville

A “I completely understand your position and it’s a good one,” says Attorney Elysa D. Bergenfeld, a partner in the Community Association practice group with the law firm of Ansell Grimm & Aaron, P.C., in Princeton.

“I do agree that proxies are important. In any association, getting enough interested owners to vote in an election or on any issue is usually a challenge.

“It’s great that you are so interested. Pursuant to N.J.S.A. 15A:5-18a, “Unless otherwise provided in the certificate of incorporation or bylaws, every member entitled to vote at a meeting of members or to express consent without a meeting MAY authorize another person or persons to for the member by proxy.” A non-profit corporation can prohibit an owner’s use of proxies if said prohibition is set forth in either that non-profit corporation’s certificate of incorporation or bylaws.

“Therefore, the previous amendment in your association does not seem to violate this statute. However, practically speaking, if the association has an issue with getting owners to vote and making quorum, etc. it may have a bigger issue now. You will have to see how it goes.”

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