“Eighty percent of success is showing up” – Woody Allen
The quote “Eighty percent of success is showing up” has been attributed to Woody Allen in reference to the notion that if one wants to aspire to something –whether it is writing, acting or something else – he or she needs to start doing that thing. While Allen discussed “showing up” in this manner in a metaphorical sense, a literal interpretation can apply to community associations. If the board of directors of your community association would like the association to take some action that requires approval of the members, the best way to ensure success is to have the association members actually show up at an association meeting where the action is to be considered. When proposing association actions to be approved by the membership, many boards of directors collect votes by proxy, by which a member entitled to vote but unable or unwilling to attend a meeting may delegate its voting rights to another individual who will be present at a meeting. Boards also often rely on proxies to count toward establishing a quorum for an association meeting. The bylaws of some associations specifically authorize a quorum requirement to be satisfied based on the presence of a certain number of members “in person or by proxy.” In the absence of this or similar language, however, an association action taken at a meeting where quorum was established through the use of proxies may be successfully challenged. Sometimes you really need members to show up.
The importance of having association members “show up” is illustrated by a recent opinion of the Georgia Court of Appeals in Demere Landing Condo. Assn. v. Matthews, (Ga. App., Feb 22, 2012). The dispute considered in Matthews involved a condominium association that gathered for a special meeting in order to consider and vote on a special assessment to pay for replacement of the roofs in the condominium. The bylaws of the association specifically authorized members to cast votes by proxy. The bylaws also provided that in order to establish a quorum – the number of members who must be present in order to legally call the meeting to order and take action – there had to be present “members entitled to cast 51% or more of the total authorized votes” of the association. The number of individuals present at the meeting together with the number of proxies submitted would have satisfied the quorum requirement; however, a homeowner objected to calling the meeting to order, stating that the proxies should not be counted toward the quorum requirement. The special assessment was adopted over this objection, the roofs replaced, and the special assessment billed to each owner. The objecting owner refused to pay and eventually filed suit against the association to challenge the special assessment on the grounds that it was not properly adopted due to lack of quorum at the association meeting. The Georgia Court of Appeals agreed that the special assessment was not valid.
In coming to its conclusion, the Court in Matthews applied the longstanding Georgia common law rule that use of a proxy – whether to cast a vote or to establish quorum – is not allowed. The Court looked to a Georgia Supreme Court decision from 1928 and to the provisions of the Georgia Condominium Act for the proposition that proxies cannot be used in establishing a quorum “[u]nless the condominium instruments or bylaws provide otherwise….” See O.C.G.A. § 44-3-103. In other words, in the absence of language specifically authorizing the use of proxies to count toward the quorum requirement, the requisite number of members must show up.
Most directors of community associations want association members to actively participate in community association matters. The recent decision of the Georgia Court of Appeals has made it clear that, unless your bylaws authorize members to cast votes and be represented at meetings by proxy, having members show up to meetings can mean the difference between an association’s actions being upheld or invalidated. Before proposing actions for approval by the association membership, board members should review their community’s governing documents to determine the requirements for taking such action and for holding a valid meeting at which such action is considered, including by satisfying the quorum requirement. After all, the success of a proposed action to be approved by membership may depend on having the members show up.