Question: I’ve noticed that when my co-op board meets, not all the members are always on hand. Don’t board members have to show up to vote? On some issues, absent members give their “proxy” votes to other members. Is it allowable?
— Concerned in Chelsea
Dear Concerned:
No, it’s not.
According to real estate attorney Bruce A. Cholst, shareholders may give their proxies to be voted in board elections, but “board members may not give their proxies to other board members to be voted in board meetings.”
A little background: As you know, co-op boards have wide latitude when it comes to how they operate. But they have to operate within the confines of state law and their own by-laws.
The rules for operating a New York co-op building are outlined in the state: Business Corporation Law (BCL). This provides a template for managing the board election process and protecting shareholders’ rights, and broadly outlines legal methods of corporate governance.
According to Cholst, “Board members need not legally be present to vote at board meetings; all that is required is that there be a quorum present at board meetings in order for a vote to be taken.”
What constitutes a quorum is defined in each co-ops by-laws, but a quorum is typically a majority of the existing board (if the board consists of five members, three constitute a quorum). Lawyer Sylvia Shapiro points out in her authoritative “The New York Co-op Bible” that the BCL now allows board members to, literally, phone it in when comes to board meetings. That is, they can be connected to the meeting by phone or other telecommunications. But they can’t give their vote to someone else.
If you feel that board members are skirting the rules, then you and your fellow shareholders might have a cause of action. The attorney general’s office has a short brochure on dealing with co-op boards that you might find helpful.
David Crook is a veteran journalist and author of The Complete Wall Street Journal Real-Estate Investing and Homeowner’s Guidebooks. Do you have a question about anything real estate-related in NYC? Write him at askus@streeteasy.com. For verification purposes, please include your name and a phone number; neither will be published. Note: Nothing in this column should be considered professional legal advice. If you have a legal issue, consult an attorney.
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