By Ryan D. Poliakoff / Published June 2016
Our HOA has decided to no longer pay for an exterminator to eliminate a rodent problem. The exterminator that the HOA hired could not determine how the rodents were entering the complex, so they refused to renew the contract when it expired. Since the rodents travel from one unit to another, is the HOA responsible to eliminate them? Or, is each unit owner responsible?
You use the term “HOA” to describe your association, but when you talk about rodents traveling between units, it sounds as if you actually live in a condominium. Assuming that’s the case and assuming that the rodents are hiding in the walls between the units, I think you can make a very good argument that the association remains responsible to eradicate the infestation. A condominium association has the responsibility to maintain the common elements, which are the areas of the condominium property owned jointly and severally by all of the owners. It is very likely that the areas inside your perimeter walls are common elements, and correcting an infestation would arguably constitute necessary maintenance. In fact, if I were representing a unit owner whose home had been infested by any kind of pest that was breeding inside the common element walls, I would argue that the association had been negligent in failing to treat the pest problem and would therefore be responsible not only to correct the problem, but also for the cost of damage to the unit, and the unit owner’s own cost of pest control. If it were a really pervasive infestation, forcing my client to find alternative housing, those costs might be recoverable, as well. So, while that would not be a slam-dunk case, it is in your association’s best interest to find another exterminator to do a more thorough job of determining where the rats are entering the property (I’m surprised that couldn’t be determined, as it is an essential element of solving an animal infestation) and to treat the problem. That is the best course of action.
At our annual meeting, the vote to approve amendments to our governing documents did not pass by the required vote. A motion was made at the meeting to extend the meeting until a later date to allow the approximately 15 owners who did not vote at all to cast a ballot. (By the way, the property manager, who was chairing the meeting, declared the voting closed just prior to the opening of the meeting, and obviously votes were tallied during the meeting.) A vote on the motion to extend the meeting was taken by a show of hands. There were many general proxy votes in the hands of the secretary, and there were other owners present at the meeting. The proxy holders were not notified as to how many proxies they were responsible to vote. No recognition of that proxy authority took place. Was this a valid vote? Shouldn’t the proxies be included in the tally? While the result might not change, isn’t it required that the general proxies be voted?
Your question includes a number of procedural assertions that aren’t entirely consistent, and so I want to step back and describe the process generally, so that you can determine whether something improper was done.
Like the vast majority of community association governing documents, it sounds as if amendments to yours must be approved by the membership. Typically, this approval is given by a vote at a membership meeting. While your bylaws may adopt particular procedures, members can usually vote either in person or by proxy. There are two types of proxies. A general proxy is a proxy that grants a proxy holder the right to participate in place of a member, including giving them the right to vote on all membership issues in whatever manner they see fit. A limited (or directed) proxy is a proxy form that instructs the proxy holder how to vote on specific issues.
You don’t say if your association is a condominium or a homeowners association, but when it comes to proxies, that makes a difference. The Condominium Act provides that condominium owners cannot vote by general proxy, only by limited proxy. There is no similar restriction in the HOA Act, however, and HOA members may grant a proxy holder the right to vote however they see fit on all issues.
Your question suggests that the secretary of the association was the proxy holder for many of the owners (which is typical), and that they were general proxies, which would have allowed the secretary to vote however he or she saw fit. You describe owners in attendance in person who may not have voted, and you suggest there were other proxy holders who may not have cast their votes, either—and it’s not clear if you are talking about the amendment vote, or the vote to continue the meeting. Of course, any proxy holder must be in attendance in order to vote. A proxy is not a ballot; it is a legal instrument that allows one person to vote on another person’s behalf.
To that end, note that there was nothing improper about having counted the proxies and any directed votes, as they related to the amendment, in advance of the meeting. They are not secret documents, and the vote itself is not secret, either. Those proxies must be kept as association records for seven years, and they are all signed by the unit or lot owner.
Ultimately the question of whether your meeting and vote were proper depends on the exact order of business and how it was conducted. If the property manager, as the chairperson of the meeting, opened the meeting and called for a vote to continue the meeting to a future date, that would be proper, and the proxies would be valid for 90 days. You say that some of the owners in attendance were not allowed to vote, which suggests that the vote on the amendment was never called, and so my guess is that the proper procedure was used. I am also not particularly concerned that the association manager did not specify how many proxy votes were being voted in a particular direction by each individual proxy holder on the motion to reset the meeting date. If a person held one or more general proxies, and he or she was voting by a show of hands, it is reasonable to assume that all of the votes held by that person were voted the same way.
Ryan D. Poliakoff
partner of Backer Aboud Poliakoff & Foelster
Ryan D. Poliakoff is a Partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at email@example.com. For more information about his firm, visit www.bapflaw.com.