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JosephS21 (South Carolina)
Posts: 54
Posted:
I have been looking for ways to challenge election results of Board of Directors in our SC HOA and could not find an exact process to ensure we are given the right to the challenge and verify. Do we have to take legal action or do we have the right?
Thanks
AugustinD
Posts: 5,144
Posted:
What part of the governing documents (Bylaws, Declaration, Rules & Regs) do you think were violated?

Does your HOA have a procedure for submitting complaints of violations of the governing documents? If so, start with this.
PitA
Posts: 1,416
Posted:
Unless the 'members list' was challenged at the meeting you are SOOL

FROM SOUTH CAROLINA’S NONPROFIT CORPORATE LAW

VOTING

SECTION 33 31 720. Members’ list for voting.

(a) After fixing a record date for a notice of a meeting, a corporation shall prepare an alphabetical list of the names of all its members who are entitled to notice of the meeting and shall list the members by classification of membership, if any. The list must show the address and number of votes each member is entitled to vote at the meeting. The corporation shall prepare on a current basis through the time of the membership meeting a list of members, if any, who are entitled to vote at the meeting but not entitled to notice of the meeting. This list must be prepared on the same basis and be part of the list of members.
(b) The list of members must be available for inspection by any member for the purpose of communication with other members concerning the meeting, beginning the day after notice is given of the meeting for which the list was prepared and continuing through the meeting, at the corporation’s principal office or at a reasonable place identified in the meeting notice in the city where the meeting will be held. A member, a member’s agent, or member’s attorney is entitled on written demand to inspect and, subject to the limitations of Sections 33 31 1602(c) and 33 31 1605, to copy the list, at a reasonable time and at the member’s expense, during the period it is available for inspection.
(c) The corporation shall make the list of members available at the meeting, and any member, a member’s agent, or member’s attorney is entitled to inspect the list at any time during the meeting or any adjournment.
(d) If the corporation refuses to allow a member, a member’s agent, or member’s attorney to inspect the list of members before or at the meeting, or copy the list as permitted by subsection (b), the court of common pleas of the county where a corporation’s principal office in this State or, if none in this State, its registered office, is located, on application of the member, may summarily order the inspection or copying at the corporation’s expense and may postpone the meeting for which the list was prepared until the inspection or copying is complete and may order the corporation to pay the member’s costs, including reasonable counsel fees, incurred to obtain the order.
(e) Unless a written demand to inspect and copy a membership list has been made under subsection (b) before the membership meeting and a corporation improperly refuses to comply with the demand, refusal or failure to comply with this section does not affect the validity of action taken at the meeting.
(f) The articles or bylaws of a religious corporation may limit or abolish the rights of a member under this section.
(g) A member may inspect and copy the membership list only if (i) his demand is made in good faith and for a proper purpose; (ii) he describes with reasonable particularity his purpose; and (iii) the list is directly connected with his purpose.

SECTION 33 31 721. Voting entitlement generally.

(a) Unless the articles or bylaws {SFHOA = one home/one vote} provide otherwise, each member is entitled to one vote on each matter voted on by the members.
(b) Unless the articles or bylaws provide otherwise, if a membership stands of record in the names of two or more persons, their acts with respect to voting have the following effect:
(1) if only one votes, the act binds all; and
(2) if more than one votes, the vote must be divided on a pro rata basis.

SECTION 33 31 722. Quorum requirements.

(a) Unless this chapter, the articles, or bylaws {SFHOA = 51%} provide for a higher or lower quorum, ten percent of the votes entitled to be cast on a matter must be represented at a meeting of members to constitute a quorum on that matter.
(b) A bylaw amendment to change the quorum for a member action may be approved by the members and, if required, be approved as provided in Section 33 31 1030.
(c) An amendment to the articles of incorporation or bylaws that adds, changes, or deletes a greater quorum must be adopted under the quorum then in effect or proposed to be adopted, whichever is greater.

SECTION 33 31 723. Voting requirements.

(a) Unless this chapter, the articles, or the bylaws require a greater vote or voting by class, if a quorum is present, the affirmative vote of the votes represented and voting, which affirmative votes also constitute a majority of the required quorum, is the act of the members.
(b) A bylaw amendment to increase or decrease the vote required for a member action must be approved by the members and, if required, be approved as required in Section 33 31 1030.
(c) An amendment of the articles of incorporation or bylaws adding, changing, or deleting a voting requirement must be adopted by the same vote and classes of members required to take action under the voting requirements then in effect or proposed to be adopted, whichever is greater.

SECTION 33 31 724. Proxies.

(a) Unless the articles or bylaws prohibit or limit proxy voting, a member may appoint a proxy to vote or otherwise act for the member by signing an appointment form either personally or by an attorney in fact.
(b) An appointment of a proxy is effective when received by the secretary or other officer or agent authorized to tabulate votes. An appointment is valid for eleven months unless a different period is expressly provided in the appointment form. However, no proxy is valid for more than three years from its date of execution.
(c) An appointment of a proxy is revocable by the member.
(d) The death or incapacity of the member appointing a proxy does not affect the right of the corporation to accept the proxy’s authority unless notice of the death or incapacity is received by the secretary or other officer or agent authorized to tabulate votes before the proxy exercises authority under the appointment.
(e) Appointment of a proxy is revoked by the person appointing the proxy:
(1) attending any meeting and voting in person; or
(2) signing and delivering to the secretary or other officer or agent authorized to tabulate proxy votes either a writing stating that the appointment of the proxy is revoked or a subsequent appointment form.
(f) Subject to Section 33 31 727 and any express limitation on the proxy’s authority appearing on the face of the appointment form, a corporation is entitled to accept the proxy’s vote or other action as that of the member making the appointment.

SECTION 33 31 725. Cumulative voting for directors.
{not applicable to SFHOA}

SECTION 33 31 726. Other methods of electing directors.
{not applicable to SFHOA}

SECTION 33 31 727. Corporation’s acceptance of votes.

(a) If the name signed on a vote, consent, waiver, or proxy appointment corresponds to the name of a member, the corporation if acting in good faith is entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the member.
(b) If the name signed on a vote, consent, waiver, or proxy appointment does not correspond to the record name of a member, the corporation if acting in good faith is nevertheless entitled to accept the vote, consent, waiver, or proxy appointment and give it effect as the act of the member if:
(1) the member is an entity and the name signed purports to be that of an officer or agent of the entity;
(2) the name signed purports to be that of an attorney in fact of the member and, if the corporation requests, evidence acceptable to the corporation of the signatory’s authority to sign for the member has been presented with respect to the vote, consent, waiver, or proxy appointment;
(3) two or more persons hold the membership as cotenants or fiduciaries and the name signed purports to be the name of at least one of the coholders and the person signing appears to be acting on behalf of all the coholders; and
(4) in the case of a mutual benefit corporation:
(i) the name signed purports to be that of an administrator, executor, guardian, or conservator representing the member and, if the corporation requests, evidence of fiduciary status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment;
(ii) the name signed purports to be that of a receiver or trustee in bankruptcy of the member and, if the corporation requests, evidence of this status acceptable to the corporation has been presented with respect to the vote, consent, waiver, or proxy appointment.
(c) The corporation is entitled to reject a vote, consent, waiver, or proxy appointment if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s authority to sign for the member.
(d) The corporation and its officer or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in good faith and in accordance with the standards of this section are not liable in damages to the member for the consequences of the acceptance or rejection.
(e) Corporate action based on the acceptance or rejection of a vote, consent, waiver, or proxy appointment under this section is valid unless a court of competent jurisdiction determines otherwise.

JosephS21 (South Carolina)
Posts: 54
Posted:
Thanks for the info with highlights.
Our concern is the validity of the votes - e.g. the numbers do not seem to add up. The BOD/MC only arrive with maybe 60 of 400 proxies and we are to take their word on the rest. Some members got repeated emails claiming their proxies were not received even after resubmitting. Year over year the incumbents end up with the same number of votes.

We are looking to verify the proxies/tally match against the list.
MichaelF17 (South Carolina)
Posts: 13
Posted:
JosephS21

The election of directors is in the hands and control of the members. An election of directors is performed by secret ballot of the members. The election process is or should be controlled by the members at the "Members Meeting." Neither the BoD nor the property manager should be involved in the election of directors in any fashion to include sending proxy votes or the tally of votes.

One of the elections procedures used by some members associations is to use a third party to send ballots and proxies and collect ballots and proxies to be verified against an approved members list. The members list is a current list of the contact information of all members and is under the custody of the Secretary of the Association (corporation). The Secretary is tasked with providing adequate and proper notice for all meetings of the corporation. The Secretary may also be a director, however, the management powers and duties of a director should not overreach to wrongly influence the Secretary's duties.

If your BoD and/or property manager conducted any member meeting, it was not a members meeting. The members must control their meetings without interference by a BoD or property manager.
JosephS21 (South Carolina)
Posts: 54
Posted:
MichaelF17

This is exactly the issue.
The MC does the following:
1) Sends out the proxies
2) Receive the proxies via fax, email & USPS. (I think some are lost - my opinion)
3) Are on the proxy to be given the right of the proxy
4) Tallies some of the proxies
5) Etc.
I fought hard to change the proxy because of their control - the MC had the power to vote. What I got out of them is a Proxy/Ballot combo - should be one or the other. They (as well as the HOA Attorney) stopped communicating with me when I asked to add the language that the MC may "Only vote as indicated below".
So with the election fast approaching, I will be hot on all of them and need to make sure my ducks are lined up properly for when I challenge the election. I need every legal avenue covered. I want their laptop and all proxies sealed and locked at that moment.

Thanks
TimB4 (Tennessee)
Posts: 21,062
Posted:
Quote:
Posted By JosephS21 on 06/04/2016 6:16 PM
MichaelF17

What I got out of them is a Proxy/Ballot combo - should be one or the other.

I believe that what you are describing is a directed ballot.

After the vote, ask to review the ballots, sign-in sheet and proxies.
There should be one ballot that matches what is on a directed proxy. If not, then something is amiss.

Keep in mind that nothing prevents you from soliciting proxies which name you as the proxy representative.
Simply add that the member is revoking all previous proxies and now appoints you. Then the proxy with the latest date controls that vote.

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