FISCALITÉ CO-OWNERSHIP : POSTAL BALLOT
Under the ELAN law of 2018, postal voting was introduced for co-owner AGMs. Since the onset of the health crisis, this system has spread.
Nevertheless, this gives rise to questions.
Using a form to vote
A mandatory form is now enclosed with the AGM notice. The voting form template is determined by decree. The document includes a table featuring the various resolutions with a tick-box for each: FOR, AGAINST, ABSTAIN
To offer a degree of _ exibility, it is possible to adapt and modify the form but none of the
statements on the template can be removed. The completed form must be received by the
property management company no later than
three full days prior to the AGM. Should the voting form be sent by email, it is assumed to have been received on the date it is sent.
For each resolution, the co-owner indicates their voting intention by ticking the relevant box. However, if the resolution in question is amended during the AGM, the postal voter having voted in favour is then considered absent for the purposes of that resolution. Indeed, the text is in very general terms, meaning that any simple alterations to the wording would result in reclassifying the vote. As such, the property management company must ensure that the vote of the co-owner who is considered absent, is removed when calculating the quorum.
Postal vote limitations and issues The limits of postal voting quickly become apparent and many situations are liable to prove problematic.
What about appointing the members of the management committee?
It is possible to vote on outgoing members but if a co-owner is submitting a postal vote they cannot vote on any candidates who stand during the meeting.
What should be done in the event of a change in quorum requirements mid-meeting (passerelle de majorité).
Is it to be assumed that the postal voter's position remains the same? Theoretically not,
since these are two different votes even if they relate to a single resolution. As such, they will be considered to be voting in favour of the _ rst vote but considered absent for the second,
unless the property management company has explicitly made provision for this scenario on the form.
What will be the status of any co-owners whose votes are unclear (two boxes ticked for example)
Will they be considered to have voted against? To be absent? Or to have abstained?
Other than these technical dif_ culties, the major drawback is the absence of discussion. Coowners are not in a position to hear the insights of the property management company or the management committee before making their decision.
Postal votes and sale of a lot When a lot is sold, the promise of sale often includes a clause under the terms of which the vendor commits to giving the buyer a proxy vote so that the buyer can vote at the AGM that is held in the period between the promise of sale and the sale. As such it is the buyer who will incur the cost of any work that is voted for.
However, it is not possible to give a proxy vote for a postal vote.
As such, the vendor must now give the buyer the AGM notice and the buyer must give the vendor instructions for _ lling in the voting form.
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