Q: The ARC in our HOA has recently published a booklet listing modification specifications and modifications that are not allowed. Some of the specifications are different than previously allowed and some of the modifications that were allowed in the past are no longer allowed.
It is my understanding that once a modification has been allowed it becomes part of the community-wide standard and it cannot be denied without an amendment to the Covenants.
We have had many changes to the ARC in the past few years, and some of the new members have tried to impose their own personal preferences in allowing modifications. Are there any guides that could instruct new ARC members on how they should conduct business and how the HOA Act, our governing documents and the community-wide standard should be used in making decisions?
A: The advice that I give to boards of directors is to establish policies. You will not find in the statutes a right to establish operational policies in writing. It is more a matter of good business procedures to have everyone on the same page, and the establishment of policies is a good way to present the information. Since these are operational procedures they are not written in stone and can be changed, modified, or eliminated at any board meeting.
You address an ARC booklet that was published. As you can see this policy has been modified over time from board to board. There’s nothing wrong with adding or eliminating modifications as long as they do not conflict with statute or community documents.
It does bring up an interesting point: If a home is modified under a specific right in past ARC policies, there should be specific paperwork between the owner, an architectural committee and the board. Such paperwork should be in a unit owner’s file and retained by the owner. Once approved, this paperwork is evidence that the home has been properly modified and would be grandfathered against future changes.
While you did not mention that your association had an architectural committee to review such request, it would be to the association’s advantage for the board to create a committee to review ARC submissions. If an owner submission complies with the ARC guidelines, the ARC should have the right to approve the submission. If the request is not found in the booklet then the submission would have to be sent to the board for approval or denial.
Q: A person who is not a lot owner in our HOA wants to be able to cast a proxy vote at the annual meeting for her son, who is. My opinion is that if her son signs the proxy form, naming her as his proxy, she can vote on all issues for her son. Others disagree, stating that since she cannot vote as a member, she cannot be anyone's proxy.
Cannot ANYONE named as proxy for a voting member who cannot be here vote that person's proxy without having to be a member themselves? The proxy form itself places no such limitation or definition of its use. I don't see anything that requires the proxy be a voting member themselves.
Our Bylaws regarding proxies state the following: Every member entitled to vote at a meeting of corporation members may authorize another person to act for him by proxy executed in writing by the member or by his duly authorized attorney in fact. In the end what can the proxy holder vote?
A: This answer does not apply to condominiums for electing the directors but could be used in condominiums for other votes or motions. It does apply to most HOA annual meeting elections for the purpose of electing the new directors and other business that comes before the members at the meeting.
There are two proxy forms, a limited proxy and a general proxy. The association may use either or both forms depending upon the items to be discussed and voted. My answer discusses general proxies for HOA only. This proxy may be given to any person (the proxy holder) to vote at the meeting. It does not have to be an owner, resident, or family member for the proxy holder to vote on all issues before the members at the specific meeting so named in the proxy.
In this scenario that you define, I assume that the son owns the home and his mother lives in the home. More than likely the mother is more concerned with the operations than the son, who could be a nonresident. There is nothing wrong in his mother being the proxy holder and voting at the annual meeting.
There is another problem: An attorney should have drafted the proxy and the attorney should advise the board on the question that you present. The simple answer is that a proxy names another person to vote for them at the annual meeting.