It may seem counterintuitive, but the person who wins a seat on their co-op or condo board is often not simply the most popular person to throw their hat into the ring. Before the votes are cast at the annual meeting, candidates eyeing board seats who are truly serious about serving their building community will have been actively preparing for months, if not almost a year in advance. Below are a few ideas and strategies Adam Leitman Bailey, P.C. has deployed to help shareholders win board seats for the last three decades.

The Proxy Vote

Besides the ballot itself, the proxy vote is the most important document in any board election. With a proxy, an owner can allow the candidate to vote on that owners’ behalf, or in their place if the owner cannot make the meeting. By giving someone your proxy vote, you authorize that proxy holder to vote for the candidate or candidates you have designated. If you have not designated a specific candidate, then your proxy holder can enter the meeting and vote for anyone he or she chooses. Obtaining either a quorum or 51% of shareholders’ in-person or by-proxy votes in a building is not automatic; meetings often need to be adjourned so necessary votes can be cast. And if a quorum cannot be reached, the existing board remains intact for another year—or until another election meeting is called. There are workarounds; an annual meeting can be adjourned to an alternate day for the purposes of achieving a quorum, and proxy votes count toward meeting the 51 percent needed. Indeed, many times proxies are used to satisfy quorum counts.

 It’s important to recognize that a board candidate simply going door-to-door collecting proxies without any other campaign messaging about what he or she aims to achieve or advocate for in the position will result in a lot of failed conversations and very few signed proxies; successful board candidates understand the importance of cultivating relationships between themselves and their neighbors  over months, or even years. A successful candidate must also be able to identify issues within the building or association of concern to residents, and then clearly communicate how they will address those issues on behalf of the community.  

 If a co-op or condo is suffering under poor leadership, residents may be so fed up with the current board that they cannot sign the proxy fast enough. Others might ordinarily be happy to give a candidate the proxy in case they can’t make the meeting, but this time they wouldn’t miss it even if they were hit by a bus.

 I know from experience that it’s a great feeling for a board candidate or group of candidates to walk into the annual meeting knowing that they have enough proxies to win a few seats. But securing proxies is only part of the battle; now the concern becomes having those proxies challenged. Were they completed correctly—signed in the right place, by the correct shareholder, with the correct apartment number and name? Were they correctly dated and approved by the managing agent? We’ve seen these questions raised, and seen them result in proxy votes being disqualified when the answer to any of those questions was no. 

Once the proxies are determined to be in order, the proxy holder should also ensure that allies have been appointed as election inspectors to count the votes, tabulate the results, and guard against fraud throughout the process.

 And make no mistake; board elections are serious legal business. In some of the Mitchell-Lama co-op buildings we have represented, questionable election practices have resulted in governmental intervention and investigations by the District Attorney’s office, leading to arrests in cases where charges besides voter fraud were brought forward. In some instances, the State Legislature passed new laws regulating the use of proxies and mail-in votes to avoid election fraud. These larger Mitchell-Lama buildings have mastered the power of the proxy.

It’s About Marketing…and Listening

Before vying for proxies, a board candidate should make a point to get acquainted with fellow owners/shareholders, clearly communicate their reasons for running, and spell out how he or she intends to make the building a better place to live. Candidates should also contact their managing agent and collect at least two years’ worth of meeting minutes, or board discussion at monthly meetings as required by N.Y. Bus. Corp. Law § 624(a) (McKinney). In addition, the building’s financials should be analyzed in consultation with an accountant or attorney in order to fully understand the financial health of the building.  

 Along with introducing themselves and their agenda to residents, board hopefuls should also go on a listening campaign to get a sense of what issues in the building are of greatest concern to their neighbors. Even the best, most competent board will have dissenters—and while the board may have very good reasons why they can’t appease those dissenters, the dissenters themselves may nevertheless raise good points worthy of consideration. In larger buildings this is easier to identify, but in smaller buildings, neighborly disputes are more common and much more difficult to navigate or avoid altogether—and if the parties are in litigation, all of the related documents are open for the public to read. Whether the issue facing a board is how to remove a nuisance shareholder, how to navigate a major capital project, or getting the building’s finances back on track, learning the ins and outs of the matter will impress the owners and may make a difference for a board candidate at an election time. And don’t discount doing it the old-fashioned way; standing in the lobby or in a central spot in the building where you can shake hands and introduce yourself to neighbors you have not met may make a difference at the ballot box as well.

Getting the Word Out 

In addition to getting out there and literally shaking hands with neighbors, every group or person running for office should introduce themselves to their building in writing as well—not only with personal information about themselves, but also with information they have been learning about the building. Candidates should balance the positive in their newsletter or email messaging (sharing good news and progress reports on building projects, for example, not naming the names of anyone in a negative light), while also making it educational and informative, not shying away from tough issues or challenges facing the community. Ideally, this letter or newsletter should go out monthly or quarterly, depending on how much lead time there is before the election.  

 If a candidate can establish him- or herself as a trusted source of information to whom other residents feel they can turn for answers to building-related questions, it’s not a bad idea for him or her to carry around a few proxies to be signed heading into the annual meeting. That enables a candidate or slate of candidates to come to the meeting with a sense of assurance they’ve got the votes needed to secure seats on the board.

Getting Proxies on Time & Properly Completed

Of course, even the most well-prepared, on-top-of-it candidate can run into snags before all the votes are counted, For example, if the current board wants to remain in power, they may delay the release of proxies in order to impede a challenger or group of challengers. Proxies are generally released by the managing agent, and if they refuse to release the proxy within a reasonable time, litigation may be necessary to compel them to do so. According to Prince v Albin, 23 Misc 2d 194, 196 [Sup Ct 1960].  .  13315 Owners Corp. v Kennedy, 4 Misc 3d 931, 948 [Civ Ct 2004], “Without election as prescribed by its bylaws, a cooperative board can become authoritarian and heavy-handed, assuming a position reminiscent of a dictatorial landlord from feudal times.” Letters should be written to document any delays, and attorneys should be brought in to have the proxies released, and even postpone the election if necessary.

 Although proxies are not difficult documents to complete, it’s not uncommon for errors to occur, and for battles to erupt over whether certain proxies should be disqualified. First, if the proxy is completed properly, and if an owner has completed another proxy (this happens often) the proxy with the most recent date wins. Second, the completed proxy is disqualified if the owner then votes in-person.  Third, ask for identification of the owner with the proxy and take pictures of the owner, the identification, and the proxy itself to avoid having anyone claim that they never signed a proxy. Why go to such lengths for a board election? Firms like ours represent some of the most prestigious buildings in the city, as well as buildings with thousands of units with multi-million-dollar budgets.  Earning seats on these boards come with great responsibility and power, and require both a great desire to win, and to lead.

 Collecting proxies, shaking hands and meeting residents, listening to shareholders/owner’s concerns, and writing a newsletter about building updates and your intentions to improve the building are wonderful ideas that have worked well over the years to help residents win elections. 

Adam Leitman Bailey, Esq. practices residential and commercial real estate law, and is among New York’s “Top 100” attorneys. Email info@alblawfirm.com for more information.