Is Proxy Voting Designation by Email Valid?

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A.K. from Windham County writes:

Dear Mister Condo,

A member emailed that he lost his proxy form but was giving his proxy to another unit owner via an email saying he has the right to vote for him. He also copied the board. Both “from” and “to” emails are valid and are on association records. Is his proxy valid?

Mister Condo replies:

A.K., the digital age brings many new digital questions. While the recently enacted provisions in the Common Interest Ownership Act (also known as CIOA) do allow for certain communications to be expressed electronically, I am not aware of any specific provisions that allow for proxy designation to be granted via email. That doesn’t mean it can’t be done, it just means that I doubt all of the necessary steps of proxy designation were followed or that many communities have the foresight to allow for this type of proxy designation in advance of the first time it was used. Clearly, the intent to grant the proxy was in place and the validity of the email was determined. Does your association routinely use email for other aspects of community association governance? Was the proxy form emailed to all unit owners? Did they all have the opportunity to electronically designate a proxy? Were all of the other rules about proxy voting observed? Did this one proxy vote have an effect on the outcome of the vote? All of these questions raise new questions which could be challenged in court. My advice would be to review the validity of electronic communications with regards to proxy voting to determine if it was fairly administered and would stand up if challenged in court. If that answer is no, I would advise the Board to revise its rules on proxy voting to either include electronic designation for future votes or disallow the practice. That would clear up the issue moving forward. All the best!

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