Proxy voting at the AGM or EGM

If a person attends an EGM or AGM on behalf of an owner and has a signed authorization/proxy vote my questions are the following:-

Can a non owner discuss community business on the agenda and influence the decisions of the meeting for example a long term renter who does not like the community rules?

Does a non owner holding authorization have to specify the wishes of the owner to the administrator/secretary before the meeting for example yes or no to agenda items?

What is the voting right of a shop/locale owner who is not a resident that attends the meeting and pays a very, very small community charge for example 7.28€ a month but has no use of community facilities under his escritura. Can the locale owner discuss community business and vote on community matters that do not affect the locale.

Of course owners who are not up to date with community fee at the time of the meeting can participate in discussions but are not entitled to vote. The same applies to the authorization/proxy vote.

Can a non owner discuss community business on the agenda and influence the decisions of the meeting for example a long term renter who does not like the community rules?
My understanding is that if the unit owner has given his proxy to another individual of his choice, then that individual represents the owner and can participate in the same way as the owner himself would. Of course, other owners may doubt whether a long term tennant is representing the landlord's interests or his own, but if the landlord has given his proxy, I don't really see how they can protest.

Does a non owner holding authorization have to specify the wishes of the owner to the administrator/secretary before the meeting for example yes or no to agenda items?
I don't see why he would have to discuss anything with the administration prior to the meeting. Surely it is sufficient to discuss them as and when the relevant point on the agenda is raised?

What is the voting right of a shop/locale owner who is not a resident that attends the meeting and pays a very, very small community charge for example 7.28€ a month but has no use of community facilities under his escritura. Can the locale owner discuss community business and vote on community matters that do not affect the locale.
The amoun an owner pays is not important, but every owner has a % quota stated on their escritura, and their vote on any issue is worth the same %. However, depending on how the community is set up and the budget aportioned, I presume that if a locale is not actually contributing to certain facilities (like a pool) that do not affect him, then the owner would not have a right to vote on (or discuss) those issues.

Just my thoughts....others may have a different view???

Roberto:

I  ( and Law) agrees with you

Maria

Thank you Roberto and Maria for your information and comments. So that other forum members are not misinformed with the issue of proxy voting.

This is a direct quote from You and the law in Spain. by David Searl 'But this sort of open proxy can be dangerous if you do not fully trust the person exercising it and that person can vote against your best interests if he/she chooses. You can make a specific and detailed proxy, which authorizes its holder to cast your vote only in certain ways. That is, the proxy can declare that its holder must vote "yes" on items three and five of the meeting agenda and can vote "no" on items one and four and that he/she must abstain from voting on other issues. The secretary of the meeting will ask to see the proxy forms when he/she registers each members attendance at the meeting, so he will know this.'

So his opinion is that a proxy vote can be specific. Is it lawful to specify the wishes of the owner on a proxy form? So in this case would it be proper for a non owner to discuss community agena items at a meeting if the proxy is not "open."


Philip

I don't think the Horizontal Law is specific on this, but I can't see any reason why a proxy can't be specific - just like a power of attorney, really. And if the owner has been very specific in such a way that implies he has sent a representative merely to vote on his behalf, then I guess it would not really be appropriate for that person to discuss any other matters. As for the issues that he will be voting on, though, I suppose he should be free to argue his (owner's) case before the vote is taken.

Philip, I'm not sure exactly where you're going with this, but maybe it would be worthwhile trying to speak to the president prior to the meeting, to ask if you may be allowed to express your concerns to the community, despite not being an owner. As a long term tennant (if I'm getting this right?) you are a neighbour and as such a part of the community in one sense, and if you have valid and reasonable complaints / suggestions etc., then the rest of the members may be willing to listen. 

Just a thought, as I'm kinda feeling my way in the dark on this one!

Thank you again Roberto for the input on this. No I am not a long term renter I am the soon to be ex-VP. As you will be aware proxy voting is a powerful tool in the future running and decision making with the finances for any community.

The problem for me on an equitable level is that I feel that certain issues that I hold proxy votes for can be contentious and I give the owner the option of how he/she would like his/her vote cast on items on the agenda particularly if it is a conflict of interest, for example if an item on the agenda is for an increase in the community fee I may feel it is necessary. But the owner who has trusted me with his/her proxy vote may feel that the community is not getting value for money with the upkeep so he/she may wish that on that issue I vote "No" on their behalf. Some owners are happy with me to vote in anyway that I wish as they trust any decisions I may make because I work for the good of the community. 

On every agenda the last item is "any other business" my humble advice is any person who authorizes the holder of the proxy vote is that they must abstain on voting on community issues rightly or wrongly is it the business of a non owner to discuss community matters?

On another level which is my concern and this is factual we have a long term renter who has not paid his rent to the landlord through his managing agent for 6 months nor the utility bills. He has been served a notice to quit as his term of 11 months is over at the end of the month. The process is now going to be lengthy as this appears to be heading for the court as he will not budge. He has let us say been nasty in his behaviour in the community. Another owner has entrusted this gentleman with a proxy vote at our forthcoming meeting this owner also has been quite poisonous toward the board and neighbours.

I will not develop the tale of the local owner but let us call him Mr. nasty number 2 his % cuota is 0.17 as you have correctly pointed out the local has no rights concerning use of the community facilities. His % share does give him however the voting right of counting as one when he raises his hand. So in his case if he would like the community budget increased for more upkeep to clear up his rubbish that is blown all over the community that he leaves outside his local. Bear in mind his fantastic contribution of 7.28€ per month and to boot he can have someone proxy vote on his behalf and discuss community issues that are not the concern of the local!

My apologies for not expanding on this issue from the begining.

Philip

The only way to ensure that ALL owners have thier say at AGM is to use a detailed voting form instead of a proxy form. Our Community has done this for the last two years and although the actual form and the accompanying details take a lot of working out ( to remove any ambiguety ) it is more than worthwhile.
EVERYONE ( who bothers to fill in the form ) knows that thier wishes are respected and they cannot say at a later stage that the voting was unfair.
This form of voting also removes and 'unscrupleness' and no owner can walk into the meeting with 50 proxy votes and swing the vote in their favour.

Sorry if I got the wrong end of the stick, Philip. I understand better now. Karen's system sounds like the way to go.

Hello, I am new to this forum.

Can anyone advise me please?  Our AGM is in November.  We think that the President is going to have secret voting this year, which means the voting papers will be completed and returned to the Administrator, and the results presented to the AGM.

This means that there will be no debate, as everything will be decided before the AGM.  All owners on our community will have to complete this secret ballot paper, including the ones who will attend the meeting.

Is this legal?

We were under the impression that you either attend the AGM, or in your absence, you gave a trusted person your proxy vote.

Thanks.

Have you ever attended a community meeting? I'm guessing, no, otherwise you would know that there is never any organised discussion or debate, instead just absolute chaos and confusion. In my opinion, a secret ballot like this is an excellent idea. If you want to discuss/debate any issues with your neighbours, do it privately before the meeting.
(I'm also guessing that you are not, in fact, a "Spanish girl"? If I'm wrong on this, my apologies, and no offence meant, but Spaniards don't generally "do" organised debates!)

Hi

We are due to have our AGM in the next few weeks and judging by what is going on at the moment it sounds like it is going to be very heated.  Can anybody advise how long after an AGM could an EGM be called?  The complex is predominately English but we are aware that the AGM has got to be minuted in both Spanish and English does that also apply to an EGM?

Hope somebody out there can give us a good response.

Jojan

If your AGM minutes have to be in English as well as Spanish, there has to have been a resolution passed to that effect some time ago. I would find it strange if such a resolution applied only to AGM minutes, and not to ALL community correspondence and minutes. I'm not aware of any time restriction between AGMs and EGMs. In practice of course, it's hard enough to get a decent turn out for one meeting per year; another one shortly after is unlikely to be well attended.

Hi Roberto

Thank you for that.  Everything we receive is normally in both Spanish and English but one question we need answering is do you know if we can call an EGM to follow on from an AGM if the AGM is not finished to owners satisfaction?

Jojan

Section 16.1 of the Horizontal Law says a meeting can be called at "any other time the president sees fit or upon request of 25 percent of the unit owners or a number representing, at least, 25 percent of the assessment quotas".
Nothing about how soon after a previous meeting it can be called. There should be 6 days notice though!

Thank you Roberto so does that mean only the President can call it?

Jojan

"....or upon request of 25 percent of the unit owners or a number representing, at least, 25 percent of the assessment quotas". I think in most communities the administrator is the one who actually sends out the notifications, so if the president is uncooperative (I'm sensing that may be your concern?) but you have some form of written evidence that at least 25% of the owners want another meeting (some sort of petition signed by members perhaps?) then I guess you could just by-pass the president, go to the administrator and demand that he arranges the meeting, according to the law. I realise that in practice this might not be as easy as it sounds. Best of luck.

P.S. You could volunteer as President at the AGM - that would be the best way to get things done the way you want! You would, of course, have to certifiably mad to do so.

Hi Roberto

Thank you for the information we will let you know how we get on.

Jojan

Hi

This is a statement from our President:

ANY MEETING ON ENGLISH SOIL CANNOT HAVE ANY DECISIONS MADE AND ACTION TAKEN AS IT IS CLASSED AS ILLEGAL AS WE ARE DEALING WITH A COMPLEX THAT IS IN SPAIN.   SUGGESTIONS CAN BE MADE AND FORWARDED TO THE PRESIDENT FOR CONSIDERATION BUT THAT IS AS FAR AS IT GOES..  

Can anybody comment please as to the legals?

Jojan

According to the Horizontal Law, any correspondence regarding the community only has to be sent to an address provided by the unit owner IN SPAIN (Section 9.1h: "to notify the person acting as community secretary, by any means ensuring proper evidence of service, of the domicile in Spain for any summons or communications of any kind related to the community. The unit shall be deemed to be the owner’s domicile by default, and any notices served on the occupant shall have full legal effect").
So it follows that any meeting concerning the community would also have to be held in Spain, but other than that I can't point you to any specific law as such. But anyway, surely common sense would suggest that he is absolutely correct?
 

Roberto

Oh I see, we thought we had seen somewhere that you could hold a meeting anywhere as long as there were more than 25% of owners attending, but thank you anyway for your kind response.

Jojan

If there is not a majority of the owners (representing a majority of the assessment quota) present at the first call, a meeting can proceed at the second call, which is normally half an hour later (the minimum required) regardless of how many owners are present. So a meeting at the second call would be perfectly valid even if only one owner turned up, but I'm pretty sure you'll find that the meeting must be held at a location deemed to be accessible to ALL owners - and since the Horizontal Law considers the property in question to be the default address for any notifications, I would assume it would also consider an appropriate venue to be one within a reasonable distance of the property. Interesting point though, because I can't find anything actually in the Horizontal Law that covers this.

Hi everyone.

This is of particular interest to our community because, as the Secretary, I am being asked to provide clear guidance as to what constitutes "Legal" voting procedure and what does not.

There are two aspects to the present discussion in our community; the first concerning community decisions.

Many members who are not resident and unable to attend have asked for us to issue a voting form, based upon the appropriate agenda items which they can then complete and return to the meeting in their absence to indicate their individual vote.  (Effectively, a postal vote)

Our Administrator has stated that:

The spanish law don't alow the  postal vote.

If  one owner wants to vote against or favour  one item from the agenda must send a representant to the meeting  or send  a proxi to an  attendant with same opinions than him  . 

The only exception are for votations  where the  item needs unanimous voting for  been aproved, in that case, non attendants nor represented have a month from the minutes notification for vote against ( only against) and avoid the agreement.

This suggests that what the members would like to have is not legal and only a general proxy voting authority, placed with (and consequently, in the control of) an attendee can be counted.

One compromise solution may be that the proxy receives specific (written?) instructions from the absentee on how to vote on their behalf on specific matters.

The second aspect concerns the voting for officers of the committee. 

Is it permissable for an absentee to specify their choice of candidate for, say, President and that, should their choice not be successful, that candidate should then receive their vote for another office, say, Vice-President?

These being points of law, can I ask Maria;  are you able to give a clear answer for me, one way or another, that I can take back to our members and administrator, please, as to which of these (if any) constitutes correct voting procedure within the law?

Many thanks
Steve

 

 

This message was last edited by morse57 on 27/01/2011.

I find this all very interesting and would really appreciate some help in our particular case.

We recently gave notice to our maintenance contractor who has run 2 phases on the community, he is an owner on one phase and is also the maintenance contractor and President of that phase, we have found in recent years that no maintenance has been done despite an enormous budget, our 2 phases are linked as we pay 2/3rds of all water and electricity costs of both phases.

It is becominga a nightmare, as he is now rounding up some owners on our phase to call and EGM to give him his job back. These are owners that rarely come down to Spain but rent out their properties and ofcourse he does private work for them. He usually holds their proxies, so if an EGM is called and those owners 10% of the community ,do not attend and he holds their proxies, and this is the man we have given notice to, and we are discussing the why's and wherefore's of the notice (and there are many) he won't care, he is going to use his proxies for his own end.

Is there anything we can do? any help will be really appreciated. All we are trying to do is cut costs and get value for money for our community.

Have been reading about proxy votes with interest however having read the Horizontal Act (maybe am missing it) can someone please advise if a President who is calling an EGM can hold proxy's?

Why not? The absent owner can give his/her proxy to whoever they want.

It most important to ensure you have a copy of the by-laws of your Residents' Association.  These are not unlike the Articles of Association of a company and contain all  information as regards voting, procedures in general, conduct of meetings and so forth. All property owners on a development are entitled to have a copy of these (Estatutos de la Comunidad).

 

Patricia

 

 

 

 Under the Horizontal Property Laws you need 25% of owners or coefficients to call for an EGM to replace a President for example, does anyone know if this is 25% of ALL owners OR those that have paid their fees.

Also, how difficult is it to change the statutes to ensure a community is run by a committee rather than one person as President.

 

Thanks for any help

 My community did it with 25% of all owners. Obviously when it comes to voting, only those who are debt free can vote.

The duties and responsibilities of the president are laid down in the HPA.

It is down to the President to decide to be a dictator or otherwise.

Changing statutes need 100% agreement and there is allways one!!

dennismundy is correct......................any owner can sign the petition calling for an EGM............but only those paid up to the date of the meeting can vote.

 Thanks to you both, getting 25% in a sizeable community is going to be tough, as we have to rely only on owners known to us, perhaps best bet is to threaten President with an EGM for vote of no confidence if he does not step down. However dictators do not like stepping down, do they?.