Accepting Proxies at an Assembly
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.
GNM
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I have a question about your “Properties bought by bank trust” My condo bylaws state that only another owner can vote a proxy and that an owner can vote only two other proxies other than their own. This seems to be in conflict of what you say and I would like your opinion of this. I would find it hard to believe that the condo bylaws supersede condo law.
I don’t believe you can restrict proxies to only owners, whether this is in the by-laws or not. For example, if an owner wants to give a power of attorney to an abogado to act on their behalf (this is actually what a proxy is), I don’t see how condo by-laws can take this right and ability away from them. This should apply to whomever the owner chooses to give a proxy (power of attorney).
This limit of two proxies per representative is to prevent voting blocks. I honestly don’t know whether by-laws can impose this type of limitation. I definitely don’t believe you can do this in Jalisco without a by-law article. You can do this in neighbouring Nayarit, because it’s in that state’s condo law.
If either of these are an important issue in your condo, you should get a legal opinion. Ask for this in writing, and ask the lawyer to provide citations for the law that supports such restrictions. If you do get an opinion one way or another, please share it with us!
We live in a condo in Nayarit and cannot find the document that limits proxy votes. Your above comment suggests that Nayarit state law controls the number of proxy votes an owner can have. Do you know where I can get current documents on Nayarit Condo Law?
Nayarit has a different condo law from Jalisco (as does each state).
Proxies are governed by the section of a state’s Civil Code that deals with Powers of Attorney. That is what proxies are in Mexico, and there is nothing to prevent an owner from providing a proxy (limited power of attorney) to any person they wish. The condo is obligated to accept a legal power of attorney. It must state: the purpose and duration for which it is granted (i.e.: exercise of condo rights at a specific assembly), along with the wishes of the proxy giver. To be legal, it must be signed by the proxy giver and two witnesses.
The Jalisco condo law does not limit the number of proxies that any one attendee at the assembly can hold, nor does the proxy holder have to be an owner. I don’t know about the Nayarit condo law, but my gut feeling is that it also does not limit this. You will need to check this.
My recommendation is to always follow two simple rules (although you cannot require owners to do this):
1. Make the proxy out to the legal name of the condo (a condo regime in Jalisco [I don’t know about Nayarit] is a legal entity), rather than another owner.
2. Have the owner spell out how they wish their votes to be applied to each motion (a limited proxy). All motions are known in advance because the Order of the Day is issued in advance of the assembly as part of the Call Notice. This Order of the Day must be followed, and nothing else can be discussed or voted on (except in unusual circumstances). In my opinion, this is superior to a general proxy, where the proxy holder can vote in any way they choose, even in contravention of the proxy givers wishes (because they are not expressed in the document).
We do have an by-law Article that says: “Owners unable to attend an annual or extraordinary assembly may vote by proxy. A proxy form will accompany the assembly notice to each owner who will complete the form and mail it to the desired proxy holder. A maximum of two (2) owner proxies may be voted by any owner(s) of another unit. For the proxy to be legal in Mexico, the proxy must be signed by the owner, and witnessed by the signature of two non-relatives.”
I still question if this is legal; as you say in your own words “It’s important to know that you cannot refuse a legally valid proxy at an assembly.”
Every year I sit with more proxies than my association will let me vote even thou the owners have designated me to vote their proxy.
My gut feeling is that this shouldn’t be done, but I don’t know.
Since this is clearly an issue because of the number of proxies others entrust to you, I would be tempted to get a legal opinion if I were you. Do be sure to show the lawyer the by-law article (in Spanish), and if he feels they can’t do this, get this opinion in writing so that you can present the opinion along with your proxies.
A possible way around this is to not use the condo proxy form, but have the owners give you a power of attorney instead. Make sure it’s a legally valid document. Technically, this isn’t the proxy form they describe in the by-law article, and the by-law limitation may not then apply. I’d prefer a legal opinion, though.
Out of curiosity, in the legal by-laws in Spanish what words do they use for “proxy,” “proxy form,” and “proxy holder”?
Gary, I hold the power of attorney for a condo. This condo is held with a bank trust. The bank gives the trust holder the proxy every year for the annual assumedly. My question is, do I as holder of the power of attorney have the right to vote this proxy? The owner of the condo that gave me the power of attorney would like me to vote the proxy but the board will not let me vote. You might say why don’t you have the bank issue you the proxy rather than the owner. The answer to this is most banks will not do this. They will only issue the proxy to the party that owns the trust. What is your opinion on this?
This is a very interesting situation.
Can the proxy holder give you a power of attorney to exercise the proxy given to them by the bank on their behalf? A proxy for a proxy.
While this seems on the surface to be reasonable (providing that the power of attorney you have is very specific), I have to say, I honestly don’t have the answer to this one! It could be that the proxy holder doesn’t have the authority to grant the power of its use to a third party. I just don’t know. You’ll need to consult a notario or lawyer.
I know that there are some banks that will issue the proxy or a power of attorney directly to another party if instructed in writing by the beneficiary of the trust. This likely depends on the bank’s policies and/or what the trust conditions say.