Correction to the “Jalisco Condo Manual”
On page 268 of the “Jalisco Condo Manual,” I say that before you can use proxies, you must add the ability to use them to your by-laws. This is not correct!
You Can’t Refuse a Legal Proxy!
It’s important to know that you cannot refuse a legally valid proxy at an assembly.
This is because a proxy is a power of attorney.
A Power of Attorney is a legal document, and it must be accepted. The person it names as a representive must be allowed to carry out any action specifically set out in the document on behalf of the person giving the power, as long as the person giving the power would themselves be allowed to take such action.
Powers of Attorney are regulated by Book Four, Second Part, Title Nine of the Jalisco Civil Code (included in the “Jalisco Condo Law in English”).
Article 2204 talks about three types of power of attorney documents:
- publicly registered;
- private, but signatures verified by a notario; and
- private, without verification of signatures by a notario.
This last one would seem to apply to most proxies.
What’s Needed to Make a Proxy Legal?
It must clearly say that a specific person (the person giving the proxy) is giving powers to a specific person (the person who’ll use the proxy) for a specific purpose (voting their condo rights) for a specific event (a specific condo assembly).
It can give general powers (the proxy holder votes as they choose), or it can give specific instructions as to how the votes must be cast (a limited proxy).
Because this is a legal document, it must be in Spanish.
Article 70 says that the person giving the proxy must sign it, print their name, and have two witness signatures.
It’s also important to know that the person acting for an owner by proxy doesn’t have to be an owner, or to even live in the condo. The proxy holder can be their abogado, property manager, a relative, or a friend. This person is allowed by the document to exercise the owner’s condo rights at the assembly in their place, as if they were that owner.
Accepting Faxed or Emailed Proxies
Accepting proxies by email or fax is convenient for owners who are away during the time of the assembly, and it’s certainly more practical (and inclusive) to do this. Fortunately, this seems to be supported by legislation.
Article 1308 is the section that requires signatures on contracts (powers of attorney fall under this category).
This article also specifically allows “electronic, optical, certified electronic signature, or any other technology mediums, if and when the information is generated or communicated wholly by means of the aforementioned mediums, [the signatures] can be attributed to the obligated people, [the documents] will exist permanently, and they will be accessible for further examination [the proxy form must be kept in the condo records and must not be destroyed].”
This acceptance of contract documents by electronic media was added to the Jalisco Civil Code in September of 2006. I believe the goal was to bring Mexico in line with other countries in acknowledging the digital age.
Most common law jurisdictions have recognised a faxed signature as legal since the 1980’s (actually, this was preceded by the legal acceptance of telegraphed signatures in the late 1800’s!). Today, courts in many US and Canadian jurisdictions have ruled that legally enforceable electronic signatures can now include: agreements made by email or fax; signing a credit or debit slip with a digital pen device at the time of sale; signing electronic documents online, and even entering a PIN into a bank machine.
Properties Bought by Bank Trust
On the coast, where property bought by foreigners must be held in trust by a bank, a slightly different situation exists.
The condo law only lets the registered titleholder of the property vote at an assembly. In the case of a bank trust, the bank is the registered titleholder. Some trust agreements give the foreign buyer the right to exercise the condo rights at an assembly, others don’t.
For foreign buyers where this is the case, the condo must have a copy of their trust agreement on file showing that they have this ability. Note that this power isn’t normally transferable, unless it specifically says so in the trust agreement. Therefore, these buyers cannot normally give a proxy to someone else.
Foreign buyers who don’t have this provision in their agreement will need a Power of Attorney from the bank giving them the right to vote at the assembly.
If either type of buyer can’t attend, they can ask the bank to give a Power of Attorney to a third party.
Again, you cannot refuse a power of attorney, and the holder doesn’t need to be an owner or resident of the condo.
Have a Standardised Proxy Policy
I still recommend that you have a proxy policy set out in your by-laws. This avoids confusion, and helps reduce questions and challenges.
I recommend that this policy says, at a minimum:
- you accept proxies for your assemblies;
- they count towards quorum;
- you accept them by fax and email;
- briefly what the minimum requirements for a valid proxy are; and
- to whom they must be delivered, and a cut-off (usually the day before the assembly).
I also recommend you use a standard proxy form that you send to all owners with the assembly call package (I give you a sample form in the BONUS Pack that comes with the “Jalisco Condo Manual”). The main reason for doing this is to make it much easier to verify the legality of each proxy. Imagine your scrutineers having to check a number of completely different forms just before the assembly. If you use your own form, they can verify them more quickly.
Over to You
If you have specific experience with accepting or rejecting proxies at a condo assembly, please share them in the comment section below this post. If you have a comment or a legal opinion relating to this topic, please share it below. If you prefer your comments or stories to be anonymous and unattributed, please use the “Email Us” tab on the left of this page to send us a private email.
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