Homeowners association boards can use proxies in voting

Q. It is unclear to some of us what constitutes the proper use of proxy votes by board members when voting on an agenda item designated for “action.”

A motion was made to enact a measure concerning the placement of real estate signs on the common areas. One board member was absent. However, he had submitted a written negative vote proxy to be cast. With the proxy vote being counted, the measure ended in a tie vote and then the board voted to table the measure for resolution at the next meeting.

The board subsequently sought legal counsel and the decision was that the proxy should not have been counted. The measure was then considered passed by a three-to-two tally.

Although NRS 116 covers in some detail the use of proxy votes by homeowners in elections and other situations, I find no mention of the use of the proxy for directors.

In addition, I did not find any section in our governing documents that addresses the use of proxy votes by members of our board.

Although I tend to think that only those board members present should be eligible to cast votes, I find nothing in NRS 116 or governing documents that restricts the use of a proxy vote by board members.

If this is so, the original vote in this case was a tie and the subsequent yes vote to table the measure should stand. What is your take on this proxy issue?

A. NRS 116.311 pertains to the use of proxies, but this law only covers homeowners voting at meetings and not board members voting at board meetings. If an association is a corporation, it is also subject to NRS 82.321. In a case of a conflict between NRS 116 and NRS 82, the statutes under NRS 116 would take precedence.

NRS 82.321 states that at any meeting of any corporation, a member may designate another person to be his proxy holder. All that is required is that the member must authorize the other person in writing whether it be by telegram, cablegram or electronic mail, etc. Now, NRS 116.311 is silent as to the use of a proxy by a member of the board of directors.

Since NRS 116.311 is silent on the subject, NRS 82.321 would dictate the requirements. If the governing documents of the association are silent, then again, NRS 82.321 would dictate the regulation.

Please note that the reader did not include any written legal opinion of the association’s attorney arguing that the proxy should not have been counted, so it is not possible for me to know on what statute or court case he based his or her decision.

Based upon my research, it is my opinion that boards can use proxies in voting on action items on association agendas.

Q. I live in a planned community. The house next to mine is a rental. A new renter moved in a few months ago and would park his old, oil-leaking beat-up car in front of my property.

It is really an eyesore. He would move the car only on those nights when I suspect he goes to work, but at all other times of the day the car just sits there on the city street directly in front of my house.

I talked to someone who said that there is nothing I could do since the car is on the city street. Do you have any suggestions?

A. First, you can contact the municipality where you reside to see if the parked vehicle is violating any municipal ordinances.

If it is, then the police department can actually tag it and have the vehicle towed.

Second, even if the vehicle is not violating any ordinances, if the association has rules and regulations pertaining to the condition of vehicles, then the association can send a letter to the tenant and to the homeowner saying the tenant is violating association rules.

In this case, after proper due process, the homeowner could be fined if the vehicle continues to leak oil on the street.

Generally speaking, the fact that the car is old and beat up would not be a violation of an association’s governing documents, as long as the car is operable.

Barbara Holland, certified property manager, is president and owner of H&L Realty and Management Co. Holland is a past president of the Greater Las Vegas Association of Realtors. Questions may be sent to Association Q. & A., P.O. Box 7440, Las Vegas, NV 89125. Her fax number is 385-3759. Questions used in the column may be edited for spelling and grammar.

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