An ongoing concern in many communities is the inability to establish quorum for purposes of election meetings or the conduct of other association business. As a result, our firm is often faced with the question of whether the association can accept "mail-in" or "absentee" ballots (collectively "absentee ballots").
An absentee ballot allows the casting of a vote by a unit owner directly without requiring the unit owner's attendance in person or by proxy at a meeting. Neither the Pennsylvania Uniform Condominium Act nor the Pennsylvania Uniform Planned Community Act specifically authorizes absentee ballots. Therefore, absentee ballots may only be used where specifically authorized by the association's governing documents. An association's use of absentee ballots without specific authorization in the governing documents may invite potential challenges to the establishment of quorum at the meeting, the validity of any business conducted therein and the election of the association's board. If specifically authorized, associations must be careful to confirm that absentee ballots are also valid toward the establishment of quorum. If not specifically authorized, the association may vote to amend their governing documents to permit the use of absentee ballots for voting and quorum purposes.
In lieu of an amendment, the association may want to consider the use of a directed proxy. A directed proxy allows an absentee unit owner to appoint another person to cast his or her vote as specifically designated on the directed proxy form. The association may use a directed proxy provided it is not specifically prohibited by the association's governing documents and otherwise complies with all proxy requirements set forth therein and in the Acts. The use of a directed proxy essentially accomplishes the same result as an absentee ballot with the added benefit of establishing quorum.
Prior to utilizing either of the options described above, an association's governing documents need to be carefully reviewed to determine whether the association may utilize an absentee ballot and/or whether there are any restrictions against or specific requirements for the use of a directed proxy.
An absentee ballot allows the casting of a vote by a unit owner directly without requiring the unit owner's attendance in person or by proxy at a meeting. Neither the Pennsylvania Uniform Condominium Act nor the Pennsylvania Uniform Planned Community Act specifically authorizes absentee ballots. Therefore, absentee ballots may only be used where specifically authorized by the association's governing documents. An association's use of absentee ballots without specific authorization in the governing documents may invite potential challenges to the establishment of quorum at the meeting, the validity of any business conducted therein and the election of the association's board. If specifically authorized, associations must be careful to confirm that absentee ballots are also valid toward the establishment of quorum. If not specifically authorized, the association may vote to amend their governing documents to permit the use of absentee ballots for voting and quorum purposes.
In lieu of an amendment, the association may want to consider the use of a directed proxy. A directed proxy allows an absentee unit owner to appoint another person to cast his or her vote as specifically designated on the directed proxy form. The association may use a directed proxy provided it is not specifically prohibited by the association's governing documents and otherwise complies with all proxy requirements set forth therein and in the Acts. The use of a directed proxy essentially accomplishes the same result as an absentee ballot with the added benefit of establishing quorum.
Prior to utilizing either of the options described above, an association's governing documents need to be carefully reviewed to determine whether the association may utilize an absentee ballot and/or whether there are any restrictions against or specific requirements for the use of a directed proxy.
