Need help interpreting bylaws on elections

CourtneyB1 (South Carolina)
Posts: 6

Posted:

I'm so excited to have found this forum. I trust that you can provide me with good advice.

Our community has 187 lots. The POA mailed each lot-owner a ballot. How many ballots must be returned for the election to be valid? How many votes must one person have to be elected to the Board?

PDF links to Incorporation, Declaration, and By-Laws here:
http://www.woodcreekatconway.com/documents.html

Article IV-Meeting of Members
Section 4-Quorum
"The presence at a meeting of Members entitled to cast, or of proxies entitled to cast, one-tenth (1/10) of the votes of the membership shall constitute a quorum for any action except as otherwise provided in the Articles of Incorporation, the Declaration, or these By-Laws. If, however, such quorum shall not be present or represented at any meeting, the Members present shall have power to adjourn the meeting from time to time, without notice as long as the requirements of Section 3 of this Article are met. The quorum at the new meeting shall be reduced to five percent (5%) of the Members."

Section 11-Action by Written Ballot
"Any action that may be taken at any annual, regular or special meeting of Members may be taken without a meeting if the POA delivers a written ballot to every Member entitled to vote on the matter and the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at the meeting."

Article V-Board of Directors; Selection; Term of Office
Section 1-Number & Types
... "After the Developer Control Period, a Board of Directors consisting of (5) individuals shall be elected by the POA thereafter by the affirmative vote of a majority of (51%) of all of the Members' votes."

Section 2-Election
"Unless agreed to otherwise by the affirmative vote of a majority (51%) of Members entitled to vote and present at the meeting, election to the Board of Directors shall be by secret ballot. At such election, the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of these By-Laws and the Declaration."

BillK15 (Washington)
Posts: 14

Posted:

Hello, based on the excerpts from your Bylaws, you must receive 96 valid ballots (51% of 187), Is there any more text in your Bylaws that may address what happens if you don't initially receive the required 51%? For example, my HOA requires 25% percent. However, if that's not met, then it reduces to 50% of the number of ballots received initially.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By BillK15 on 01/26/2017 2:18 PM
Hello, based on the excerpts from your Bylaws, you must receive 96 valid ballots (51% of 187), Is there any more text in your Bylaws that may address what happens if you don't initially receive the required 51%? For example, my HOA requires 25% percent. However, if that's not met, then it reduces to 50% of the number of ballots received initially.

Sorry, THAT is not correct.

19 ballots would represent quorum at a first meeting and if that can't be achieved then the adjourned meeting would required 10 ballots.

RichardP13 (California)
Posts: 3,868

Posted:

In reagrds to how many votes would it take to get on the Board. If three people were running for two position, the top two vote getters are elected.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CourtneyB1 on 01/26/2017 1:37 PM
I'm so excited to have found this forum. I trust that you can provide me with good advice.

Our community has 187 lots. The POA mailed each lot-owner a ballot. How many ballots must be returned for the election to be valid? How many votes must one person have to be elected to the Board?

PDF links to Incorporation, Declaration, and By-Laws here:
http://www.woodcreekatconway.com/documents.html

Article IV-Meeting of Members
Section 4-Quorum
"The presence at a meeting of Members entitled to cast, or of proxies entitled to cast, one-tenth (1/10) of the votes of the membership shall constitute a quorum for any action except as otherwise provided in the Articles of Incorporation, the Declaration, or these By-Laws. If, however, such quorum shall not be present or represented at any meeting, the Members present shall have power to adjourn the meeting from time to time, without notice as long as the requirements of Section 3 of this Article are met. The quorum at the new meeting shall be reduced to five percent (5%) of the Members."

You need 10% of 187 which is 19 to establish a Quorum. If you do not get the 10%, the meeting can be adjourned and at the next meeting you will need 5% of 187 which is 10.

Section 11-Action by Written Ballot
"Any action that may be taken at any annual, regular or special meeting of Members may be taken without a meeting if the POA delivers a written ballot to every Member entitled to vote on the matter and the number of votes cast by ballot equals or exceeds the quorum required to be present at a meeting authorizing the action and the number of approvals equals or exceeds the number of votes that would be required to approve the matter at the meeting."

Anything that can be done at a meeting can be done with a written ballot instead of a meeting.

Article V-Board of Directors; Selection; Term of Office
Section 1-Number & Types
... "After the Developer Control Period, a Board of Directors consisting of (5) individuals shall be elected by the POA thereafter by the affirmative vote of a majority of (51%) of all of the Members' votes."

When under owner control (after the Declarant turns control over to the owners) it will require 51% or 96 of all 187 owners voting to elect BOD Members. Do not confuse this with 51% of a Quorum. It must be 51% of all owners. This also raise the question of how a BOD is seated while under Declarant control. More than likely, appointed by the Declarant.

Section 2-Election
"Unless agreed to otherwise by the affirmative vote of a majority (51%) of Members entitled to vote and present at the meeting, election to the Board of Directors shall be by secret ballot. At such election, the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to exercise under the provisions of these By-Laws and the Declaration."

A secret ballot must be used unless 51% of all owners (96) and present at the election meeting vote not to use a secret ballot.

Do not confuse those required to conduct business (a Quorum of 10% or 19) with needing (51% or 96 owners) to hold an election or do other things. Many get confused and think it is 51% of the 10%.

I hope the above comes out as planned as I am on my 2nd drink...LOL

RichardP13 (California)
Posts: 3,868

Posted:

I am afraid I am going to change my answer to, these are as bad a set of bylaws as I have send.

What good is it that you only need 19 people to show up to open the ballots, but you need 51% or 96 for it to count.

CourtneyB1 (South Carolina)
Posts: 6

Posted:

Quote:

Posted By BillK15 on 01/26/2017 2:18 PM
Hello, based on the excerpts from your Bylaws, you must receive 96 valid ballots (51% of 187), Is there any more text in your Bylaws that may address what happens if you don't initially receive the required 51%? For example, my HOA requires 25% percent. However, if that's not met, then it reduces to 50% of the number of ballots received initially.

No, there is not

CourtneyB1 (South Carolina)
Posts: 6

Posted:

Quote:

Posted By RichardP13 on 01/26/2017 2:38 PM

Posted By BillK15 on 01/26/2017 2:18 PM
Hello, based on the excerpts from your Bylaws, you must receive 96 valid ballots (51% of 187), Is there any more text in your Bylaws that may address what happens if you don't initially receive the required 51%? For example, my HOA requires 25% percent. However, if that's not met, then it reduces to 50% of the number of ballots received initially.

Sorry, THAT is not correct.

19 ballots would represent quorum at a first meeting and if that can't be achieved then the adjourned meeting would required 10 ballots.

That is how I read it.

CourtneyB1 (South Carolina)
Posts: 6

Posted:

Quote:

Posted By RichardP13 on 01/26/2017 4:09 PM
I am afraid I am going to change my answer to, these are as bad a set of bylaws as I have send.

What good is it that you only need 19 people to show up to open the ballots, but you need 51% or 96 for it to count.

I agree, these are bad bylaws.

Okay, how about this, though?

At least fifty-one percent (51%) affirmative votes of at least 19 total votes cast makes a Board of Directors election valid. The wording is “the affirmative vote of a majority of (51%) of all of the Members' votes.” Since you cannot count votes which are not cast, the 51% must refer only to actual votes cast.

CourtneyB1 (South Carolina)
Posts: 6

Posted:

To continue ... The 51% is referring to the majority affirmative votes, in that, someone couldn't be elected if they were running against two other people and they each received, say, 31%, 31%, and 38% affirmative votes.

But the quorum (19 lots) is what is needed to vote on the issue.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By CourtneyB1 on 01/26/2017 1:37 PM
I'm so excited to have found this forum. I trust that you can provide me with good advice.

Our community has 187 lots. The POA mailed each lot-owner a ballot. How many ballots must be returned for the election to be valid? ANSWER: 51% or more ballots must be returned. How many votes must one person have to be elected to the Board? ANSWER: The majority of the 51% of ballots cast, in respect to each vacancy, via as many votes as each member is entitled to exercise under the provisions of the By-Laws and the Declaration.

Keep in mind we only answer based on our experience and what you post. I would contend the above is answers to your question based on what you have posted.

AmyA1 (Washington)
Posts: 101

Posted:

My Association is in the final stages of revising our Bylaws. Correctly and clearing stating quorum and voting procedures was priority and highly discussed with our attorney.
JohnC46 explained it perfectly.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By CourtneyB1 on 01/26/2017 5:16 PM

Posted By RichardP13 on 01/26/2017 4:09 PM
I am afraid I am going to change my answer to, these are as bad a set of bylaws as I have send.

What good is it that you only need 19 people to show up to open the ballots, but you need 51% or 96 for it to count.

I agree, these are bad bylaws.

Okay, how about this, though?

At least fifty-one percent (51%) affirmative votes of at least 19 total votes cast makes a Board of Directors election valid. The wording is “the affirmative vote of a majority of (51%) of all of the Members' votes.” Since you cannot count votes which are not cast, the 51% must refer only to actual votes cast.

Courtney

51% of all owners does not mean 51% of a Quorum. It means 51% of all owners. In your case only 19 are needed for a Quorum but 51% of 187 (96) must vote.

Let me put it another way. You could hold a meeting where 100 owners showed up. This alone establishes a Quorum as the Quorum only required 19. Let us say a vote is called for and only 90 of those 100 vote. Sorry but the 90 is not 51% of the owners (it is 48%) thus nothing happens.

You are making a common mistake. You are reading it as 51% of a Quorum when it is 51% of all owners.

RichardP13 (California)
Posts: 3,868

Posted:

Section 1-Number & Types
... "After the Developer Control Period, a Board of Directors consisting of (5) individuals shall be elected by the POA thereafter by the affirmative vote of a majority of (51%) of all of the Members' votes."

51% of all of the Members votes are the number of votes that were cast by the Members. So to have a meeting, you initially have to have 19 present to call the meeting to order. Only three members may actually vote and the candidate needs at least two of the three votes cast.

ow do you have an affirmative vote for a person. I understand when there is a yes or no question?

CourtneyB1 (South Carolina)
Posts: 6

Posted:

Along the same lines, what does this say?

Declaration of Covenants

Article XIV – Duration of These Covenants and Amendment
Section 14.02 Amendment
After such time as 100% of the lots have been conveyed in the Woodcreek Subdivision, including Woodcreek and Woodcreek Estates, these Covenants, the Articles, or the Bylaws may be materially amended only by a unanimous vote of the Board and the affirmative vote of fifty-five (55%) percent of the Owners voting, including those Owners voting by absentee ballot."

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Courtney

What is your education level and profession?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

SORRY NO EDIT

The above is simple enough to understand. The real question is how do things work before 100% of all is sold?

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By CourtneyB1 on 01/27/2017 3:02 PM
Along the same lines, what does this say?

Declaration of Covenants

Article XIV – Duration of These Covenants and Amendment
Section 14.02 Amendment
After such time as 100% of the lots have been conveyed in the Woodcreek Subdivision, including Woodcreek and Woodcreek Estates, these Covenants, the Articles, or the Bylaws may be materially amended only by a unanimous vote of the Board and the affirmative vote of fifty-five (55%) percent of the Owners voting, including those Owners voting by absentee ballot."

Courtney ... Are you still under Developer Control???

If you are no longer under Developer control the documents can only be amended by a unanimous vote of the Board AND affirmative vote of 55% of all owners voting including absentee votes.

If you are under Developer Control then possibly the documents cannot be amended.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By JanetB2 on 01/27/2017 10:35 PM

Posted By CourtneyB1 on 01/27/2017 3:02 PM
Along the same lines, what does this say?

Declaration of Covenants

Article XIV – Duration of These Covenants and Amendment
Section 14.02 Amendment
After such time as 100% of the lots have been conveyed in the Woodcreek Subdivision, including Woodcreek and Woodcreek Estates, these Covenants, the Articles, or the Bylaws may be materially amended only by a unanimous vote of the Board and the affirmative vote of fifty-five (55%) percent of the Owners voting, including those Owners voting by absentee ballot."

Courtney ... Are you still under Developer Control???

If you are no longer under Developer control the documents can only be amended by a unanimous vote of the Board AND affirmative vote of 55% of all owners voting including absentee votes.

If you are under Developer Control then possibly the documents cannot be amended.

I read it the same as Janet does.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

When I visit their web page, the declarant turned control over to the owners in 2006. I commend them for having everything available on their website. My overall impression is they operate upfront and publically.