Does a power of attorney for the right to vote at a general meeting of homeowners association members need to be certified? Owners voting by proxy

Is it possible to participate in general meetings of a public organization by proxy? at a meeting of the board of trustees?

Answer

For some forms and types of NPOs the law also directly provides for the right to participate in general meetings through one’s representative (by proxy). Such NPOs include credit cooperatives (Article 18 of the Federal Law dated January 1, 2001 No. 190-FZ “On Credit Cooperation”), housing savings cooperatives (Article 34 of the Federal Law dated January 1, 2001 No. 215-FZ “On Housing Savings Cooperatives”). cooperatives"), horticultural, gardening and dacha associations (Article 21 of the Federal Law of 01.01.01 “On horticultural, vegetable gardening and dacha non-profit associations of citizens”). It is easy to see that in all of these cases we are talking about representation and protection property right

At the same time, the legislation on public associations does not at all affect the procedure for holding a general meeting of a public organization, therefore, based on the letter of the law, it is impossible to prove that it is impossible to participate in a meeting of a public organization by proxy. I believe that if the possibility of participating in a general meeting through a representative (by proxy) is provided for by the charter of a public organization, the decisions made by such a meeting of “representatives” are difficult to challenge. However, actions through a representative within a public organization, in my opinion, contradict the meaning of the legislation on public associations.

In the Classifier of Legal Acts, legislation on public associations belongs to the section “Constitutional system”. The legislation on public associations is accompanied by laws on the elections of the president and deputies, on referendums, and on freedom of religion. Legislation on other non-profit organizations, as well as commercial organizations, belongs to the section “Civil Law”. It can be said that the right of citizens to create non-profit partnerships, consumer cooperatives, homeowners’ associations and many other forms and types of non-profit organizations relates to the socio-economic rights and freedoms of man and citizen, while the right to create public associations, to participate in public associations is socio-political rights. It is assumed that the citizen exercises his socio-political rights personally. In some cases, the law directly indicates precisely this procedure. Thus, each referendum participant votes personally; voting for other referendum participants is not allowed (clause 9 of Article 74 of the Federal Constitutional Law “On the Referendum of the Russian Federation”). Exactly the same legal norm is contained, for example, in the Federal Law “On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation”

According to Article 117 of the Civil Code of the Russian Federation, public and religious organizations (associations) are voluntary associations of citizens who, in accordance with the procedure established by law, have united on the basis of common interests to satisfy spiritual or other non-material needs . It is understood that the interests, the commonality of which underlies the association, are personal and not property. Personal and spiritual interests cannot be represented by proxy.

Let's take, for example, a children's public organization. Members of such an organization are citizens who have reached 8 years of age. The highest governing body of a children's public organization, like an adult one, is the general meeting, or conference, or congress. Obviously, the general meeting of a children's public organization is a meeting of children and a small number of adults directing the process in the right direction. If actions through a representative in a public organization were a generally accepted norm, then the parents of pioneers would come to a meeting of, for example, a pioneer organization - after all, parents are the legal representatives of minors. But this approach does not correspond to the meaning of the existence of children's public organizations, and this does not happen in practice.

If a public organization has a complex structure and its highest governing body is a conference (congress), then the delegates to the conference (congress) choose general meeting. They choose based on a combination of significant personal factors. Suppose the general meeting elected a member of the public organization N. as a delegate to the congress, and N. issued a power of attorney to citizen M., who is not a member of the organization and whom no one in the organization knows. The law doesn’t say that you can’t do this, but no one does it.

With regard to participation by proxy in meetings of the board of trustees, the same line of reasoning applies. The law does not regulate the procedure for forming boards of trustees; it only indicates that the board of trustees supervises the activities of the fund, the adoption of decisions by other bodies of the fund and ensuring their execution, the use of the fund’s funds, and the fund’s compliance with the law. If we again proceed from the meaning of the legislation on non-profit organizations and focus on the high level of development of civil society, then it can be argued that the board of trustees personifies the “honor and conscience” of the foundation; being a member of the board of trustees is honorable and responsible (responsible - not in the sense of the possibility of being brought to administrative or criminal liability). Therefore, invitations to the board of trustees should be personalized; famous people with an impeccable reputation should be invited. All these qualities cannot be transferred by proxy, therefore, in my opinion, participation in the board of trustees through a representative is impossible. But, as in the case of a meeting of a public organization, there is no direct prohibition of this kind of action in the legislation.

A. Tolmasova, lawyer

State corporation laws generally provide

personally (in person) or through representatives (by proxy). (**22).

The most common recently in

used in all major, as well as most

medium-sized corporations. It is used as one of the main

(**22) N. Y. Bus. Corp. Law, 609; Del. Gen. Corp. Law, 212, III;

Bas. Corp. Act, 28.

new legal means to strengthen corporate

radios of the dominance of big capital. Practice so far

As a rule, directors and managers of the corporation act as

radios (or their substitutes) expressing the interests

large industrial and banking capital, invested

married to a corporation. Using his high service

financial situation and corporate funds, and

also lack of awareness and disengagement from participation

in the management of corporations of small capital investors

Tal, they, through direct extortion, simply

nerves and use them in the interests of real

masters of the corporations of which they are servants. On

such openly predatory character was used

of the institution of representation in the field of voting

employees in corporations were forced to pay attention

candidates for the positions of directors by the di-

rectors and managers of corporations when the shares

ners are deprived of the opportunity to include the proposals put forward by them

persons on the lists of candidates...the state system

voting through representatives in corporations has become

an anti-democratic invention that nullifies

any possibility of real application of the theory of development

division of powers to corporations>. (*23).

From a legal point of view, representation in

walkie-talkies are considered as one of the types of general

Danish Institute of Representation in US Law.

However, taking into account the scope of its application, it is regulated

is governed not only by general norms relating to

representation in general, but first of all the law

us about state corporations and in certain cases

rules issued by the Federal Commission on Re-

regulation of the issue and circulation of securities

in corporations there can be any person who can

(**23) M. Caplin. Shareholder Nominations of Directors: a Program

for Fair Corporate Suffrage. 39 Va. L.Rev. 141, at 151 (1903).

act as a representative in general civil law

wearing. State laws and courts divide such pre-

bettors into two groups. One of them includes persons

not directly related to material relations

relationships with shareholders from whom they receive trust

include directors and managers, components

US corporations.

The second group is formed by persons whose participation in the role

our consequence of their material relations with the shareholders

tions (coupled with an interest or given as security).

Thus, New York State Corporation Law (609)

residents; 2) persons who agreed to the purchase

corporations corresponding loans on the terms of issuance

give them powers of attorney for the right to act as a

voting representatives (in this case, power of attorney

is one of the types of remuneration); 4) serving

public corporations for which a power of attorney for the right

labor remuneration for their work in the corporation;

5) persons who have received the right of representation in voting

on the basis of special agreements, the conclusion

disputes between shareholders on the issue of the voting procedure

poking (for their representative activities these

persons usually receive from shareholders a certain opportunity

award).

py is, as a rule, episodic in nature and

mu cannot in any way lay claim to a definite

playing role in characterizing the essence of the institution of go-

Losing representatives in modern corporations

representatives in corporations is that

lyam of the first group, can be throughout the entire time

neither their actions are unilaterally annulled

not by the shareholders who issued them. Powers of attorney,

issued to representatives of the second group, according to their characteristics

character are irrevocable, i.e. not subject to

termination by unilateral expression of will of an ac-

Zioners.

According to most state laws

it is not defined in the power of attorney itself, it is equal to one

eleven months. (*24). In Delaware it is three

of the year. (*25). In some cases, state laws establish

also the deadline for which it can be issued

power of attorney. (*26).

issuance in writing. The half-life contained in it

powers usually include the ability to vote

information on all issues considered at the meeting

yah shareholders, except in extraordinary matters

dews concerning organic changes of the corporation

(liquidation, reorganization, sale of assets, property

The owner must have a special power of attorney.

The power of attorney form is usually sent by shares

oner to the person or corporation that is interested in

are required to obtain from him a power of attorney for the right to vote

poking. The peculiarity of representation during voting

in corporations is precisely what is not here

the represented person is looking for a representative, but, on the contrary, the representative

the presenter tries to find the person being represented so that -

would take away his right to vote.

ut officers of corporations, they are obliged together

with a power of attorney form, it is necessary to send it to the shareholder

most truthful information about financial and production

status of the corporation, and also set out the co-

keeping those issues for which you ask

a power of attorney is issued.

As practice shows, many

directors and managers of corporations not only do not de-

bark about this, but, on the contrary, try in every possible way to misinform

to pacify shareholders.

(**24) N. Y. Bus. Corp. Law, 609.

(**25) Del. Gen. Corp. Law, 212.

(**26) N. Y. Bus. Corp. Law, 609-3; Cal. Corp. Code, 2226

u Oklahoma Statute title 18, 1(60)-7 years; North Carolina General

Statute 55-68-10 years.

In connection with this kind of abuse, the Federal

commission for regulation of issue and circulation

corporate securities was forced to introduce

special rules regarding proxy forms

information and information sent to shareholders. (*27). At cha-

In fact, corporations were ordered to expel

shareholders power of attorney forms, in the form of a reminder -

shareholders, if they wish, could determine their

attitude towards specific issues brought up at meetings

or. It is clear that corporate executives

radios are interested in such orders from shareholders,

that suit their interests. Therefore, in pro-

Otherwise, they simply do not accept messages sent to them

powers of attorney.

In accordance with the rules, the sent share-

information must be pre-registered

stratified in the said commission. However, the commission is not

is obliged to verify the accuracy of the information provided

management of the corporation to shareholders.

This means that the director and management of the corporation

walkie-talkies may still not only be limited

message to shareholders in the most general terms, without saying anything

information, but also resort to misinformation. On

This possibility is widely used in practice.

In addition, the rules in question concern

only corporations whose shares are registered on

national stock exchanges. Hence,

Many corporations are outside their reach.

radios (in 1959, over 1,200 large and medium-sized corporations

porations), whose leaders are essentially free

we are relieved of any responsibilities in relation to the representation

the shareholders they represent.

yah raises another problem. We are talking about the possibility

advantages of using corporation-owned

funds to cover the costs associated with obtaining

This issue becomes especially acute in cases where

(**27) The Securities Exchange Act, 1934, sec. 14, Rules X-14A-1-12

(15 U.S.C.A. 75).

when a power struggle flares up between corporations

between the persons in whose hands the management is located

corporations, and groups rivaling them -

mi businessmen. The pursuit of shareholder proxies

in these cases, each of these groups costs a huge

new money. Thus, in the once sensational struggle for

spent 550 thousand dollars, and their opponents almost

three times more - 1 million 300 thousand dollars. Necessary

cost of use by directors and managers

corporation's cash funds to pay expenses

sending notices to shareholders about convening meetings,

providing them with information about the content of the issue

owls submitted to these meetings, as well as on the adoption

measures aimed at ensuring the established for

I doubt it. These actions are included in the content

duties of directors and managers as they should

corporate officials.

Positively resolved in judicial practice in the present

present time and the more complex question of the possibility

use by directors and fund managers

corporations to finance their activities in the semi-

approval from shareholders of proxies for voting rights

provided that such actions are necessary

to protect the interests of the corporation itself. This conclusion

was, in particular, made in a leading court decision

New York State Court 1955 Rosenfeld v.

But, as was quite rightly noted in

tive of this decision, the consciousness of interested parties,

which are directors and managers, practically

does not have the ability to differentiate between preferred

vested interests of the corporation, on the one hand, and

personal interests of the bearers of this consciousness, on the other hand

This is eloquently evidenced by the circumstances

of the case itself, which became the subject of judicial

(**28) 309 N. Y. 168.

proceedings precisely because those who were at

authorities, corporation leaders illegally tried

profit at her expense by concluding a long-term

employment agreement with one of his colleagues with payment

that he has an exorbitantly high remuneration and pension.

At the same time, what is especially important to note is that the leaders

corporations in pursuit of shareholder proxies due to

spent funds belonging to the corporation and on

goals such as creating entertainment for shareholders

events, maintaining personal contacts with

them with the help of specially rented aircraft

tov, etc.

Nevertheless, the court recognized these expenses as right-

dimensional, putting them in direct connection with the protection of di-

rectors and managers of the general interests of the corporation

This court decision gave an affirmative answer and

on a very controversial question in practice about the right of competition

destitute group of capitalists for compensation from

corporation funds for expenses incurred by it in the fight

for shareholders' powers of attorney. It is allowed in case

her seizure of administrative power in the corporation with

subject to approval of these expenses by a majority of the state

shareholders' los. The court proceeded from the fact that

corporations are the owners of the existing

they have property and therefore have the right to dispose of

to them at their own discretion.

More on topic 5. Voting by proxy:

1. Chapter 11 SPECIAL RESOLUTIONS ON VOTING WITH TRANSFER OF ELECTION BALLOTS BY PROXY
2. § 59. Special types of powers of attorney and instructions. - Power of attorney to represent the estate as collateral for contracts. - Trade and credit power of attorney.
3. Chapter 9 SPECIAL RESOLUTIONS ON VOTING IN THE VOTING PREMISES
4. § 58. Russian law on power of attorney. - The right to give a power of attorney. - The right to be an attorney. - Believing letter. - Certificate of trust in the messenger.
5. Appendix 5 RECOMMENDATIONS for monitoring the voting process and summing up voting results at a polling station
6. 5. Validity period of the power of attorney. Termination of power of attorney.
7. _ 4. Power of attorney in international transactions 1. General rules

- Copyright - Agrarian law - Advocacy - Administrative law - Administrative process - Shareholder law - Budget system - Mining law - Civil procedure - Civil law - Civil law of foreign countries - Contract law - European law - Housing law - Laws and codes -

In the work of HOAs, situations often arise that have to be resolved through voting. If any of the owners of the living space cannot personally participate in meetings and make decisions on issues put forward on the agenda, he has the right to transfer his vote to a proxy. There is a special document for this - a power of attorney for voting at a general meeting of homeowners.

Vote

Voting by HOAs is an accessible way to resolve problematic situations brought up for consideration (OSS). The results are taken into account by counting votes. This form of decision-making applies to questions about the creation or liquidation of an HOA (Article 136, 141 LC), as well as in order to elect members of the board and chairman of the partnership ( Art. 147, 149 ZhK) or to resolve disputes.

Who has the right to vote

The owners of living space in an apartment building (MKD) have the right to vote at the general meeting in person or in absentia, through an authorized representative. In turn, residents can confirm their ownership with an appropriate certificate or an extract from the Unified State Register of Real Estate. A person chosen by the owner of the living space to attend general meetings, temporarily or permanently, is considered a representative of the principal.

The attorney participates in discussion of issues, makes decisions and votes. The document on the basis of which the owner of the living space transfers his powers is a power of attorney. Each member of the partnership who, for one reason or another, did not participate in the general meetings of the owners, has the right to appeal the decision in court if it:

1. Contradicts the requirements of the Housing Code.
2. Violates the legitimate interests of the home owner.

Organization and holding

After the OSS is carried out in an apartment building, a document is drawn up. It indicates the results of decisions made by voting. The procedure is carried out in two generally accepted ways:

1. Full-time.
2. Correspondence.

The first option requires the personal presence of all members of the homeowners association. The chairman of the board of the HOA or an authorized person informs the participants in advance about the holding of the OSS. Informs the date and time when the meeting will take place, provides a list of issues to be submitted for consideration. For a vote to be valid, the number of residents voting must exceed 50%. In cases where the Charter of the partnership does not provide for the procedure for counting votes of members of the general meeting of the HOA, it is permitted to apply the rules regulated by the Housing Code of the Russian Federation.

Absentee voting

If it was not possible to ensure the attendance of the majority of members of the OSS at the MKD, the procedure can be carried out according to the same agenda in absentia. For this purpose, an individual form of absentee voting ballot with a list of questions is being developed. The procedure is also established:

• determine the method of collecting votes;
• select the address to which the completed ballot is sent;
• elect representatives of the counting commission;
• set a start and end date for voting.

The HOA's absentee voting ballot is distributed to residents' mailboxes. Owners of living space in apartment buildings who have received the form must carefully read all the points presented in it and make a decision “FOR” or “AGAINST” for each of them. Residents also have the right to refrain from making a decision. The completed document is sent to the address previously agreed upon, or placed in the mailbox of the head of the counting commission.

• questions from the bulletin;
• number of all votes;
• number of people who voted “for”;
• "no" votes;
• solution results.

IMPORTANT! The decision is considered adopted if more than 50% of residents cast their votes in its favor.

I had an argument with a colleague about whether it was possible to vote via SMS.
The idea here is this:
"The protocol is signed by a representative based on powers of attorney from each owner. But he signs “for” or “against” depending on the instructions received. "By default" the decision is made by the House Council. The owner is informed about it. Unless he instructs the attorney to vote otherwise, the attorney votes “yes” on his behalf. SMS is used to transmit the “will”, and the operator votes according to an agreement with the owner.”
The dispute was about whether it is necessary to notarize the power of attorney.

To clarify, here are some useful links to court findings:

In the opinion of the Judicial Collegium, the argument of the cassation appeal that the proxies for voting were drawn up in violation of Part 2 of Article 48 of the Housing Code of the Russian Federation deserves attention.
From the meaning of Article 48 of the Housing Code of the Russian Federation, it follows that the owner of premises in an apartment building, as well as a member of the HOA, has the right, but not the obligation, to personally participate in voting at a general meeting, while he has the right to authorize his representative to vote at the meeting on his behalf.
According to Part 2 of Article 48 of the Housing Code of the Russian Federation, a power of attorney for voting must contain information about the represented owner of the premises in the corresponding apartment building and his representative (name or designation, place of residence or location, passport details) and must be drawn up in accordance with the requirements of paragraphs 4 and 5 of Article 185 of the Civil Code of the Russian Federation or certified by a notary.
Thus, by virtue of mandatory instructions in the law, a power of attorney issued by an individual must be certified by the organization in which the principal works or studies, the housing maintenance organization at his place of residence or the administration of the inpatient medical institution in which he is being treated, or notarized.
Cassation ruling of the Supreme Court of the Udmurt Republic dated 07/05/2010 in case No. 33-2134

Yes it needs to be notarized.

Housing Code of the Russian Federation, Article 48. Voting at a general meeting of owners of premises in an apartment building

1. The right to vote at a general meeting of owners of premises in an apartment building on issues put to vote belongs to the owners of premises in this building. Voting at a general meeting of owners of premises in an apartment building is carried out by the owner of the premises in this building, both personally and through his representative.

ConsultantPlus: note.

The provisions of Part 2 of Article 48 (as amended by Federal Law No. 267-FZ of July 3, 2016) apply to legal relations that arose from September 1, 2013.

2. A representative of the owner of premises in an apartment building at a general meeting of owners of premises in this building acts in accordance with the powers based on the instructions of federal laws, acts of authorized state bodies or acts of local government bodies, or a written power of attorney for voting. The power of attorney for voting must contain information about the represented owner of the premises in the corresponding apartment building and his representative (name or designation, place of residence or location, passport details) and must be drawn up in accordance with the requirements of paragraphs 3 and 4 of Article 185.1 of the Civil Code of the Russian Federation or notarized.

(as amended by Federal Law dated July 3, 2016 N 267-FZ)

(see text in the previous edition)

Civil Code of the Russian Federation Article 185.1. Power of attorney

(introduced by Federal Law dated 05/07/2013 N 100-FZ)

Positions of the highest courts under Art. 185.1 Civil Code of the Russian Federation >>>

1. A power of attorney to carry out transactions requiring a notarial form, to submit applications for state registration of rights or transactions, as well as to dispose of rights registered in state registers must be notarized, except for cases provided for by law.

2. The following are equivalent to notarized powers of attorney:

1) powers of attorney of military personnel and other persons undergoing treatment in hospitals, sanatoriums and other military medical institutions, which are certified by the head of such institution, his deputy for medical affairs, and in their absence, the senior or duty doctor;

2) powers of attorney of military personnel, and at points of deployment of military units, formations, institutions and military educational institutions, where there are no notary offices and other bodies performing notarial acts, also powers of attorney of employees, members of their families and family members of military personnel, which are certified by the commander (chief ) these units, formations, institutions or establishments;

3) powers of attorney of persons in places of deprivation of liberty, which are certified by the head of the corresponding place of deprivation of liberty;

4) powers of attorney of adult capable citizens located in social protection institutions, which are certified by the administration of this institution or the head (his deputy) of the relevant social protection authority.

3. A power of attorney to receive wages and other payments related to labor relations, to receive remuneration for authors and inventors, pensions, benefits and scholarships, or to receive correspondence, with the exception of valuable correspondence, may be certified by the organization in which the principal works or studies, and the administration of the inpatient medical institution where he is being treated. Such a power of attorney is certified free of charge.

ConsultantPlus: note.

On the requirements for certification of a power of attorney to represent the interests of a legal entity in court, see also Part 3 of Art. 53 Code of Civil Procedure of the Russian Federation, Part 5, Art. 61 Arbitration Procedure Code of the Russian Federation, Part 6, Art. 57 CAS RF.

4. A power of attorney on behalf of a legal entity is issued signed by its head or another person authorized to do so in accordance with the law and constituent documents.