Bylaws - Terms

For legalities you need to consult with an attorney.

My understanding is that changes take affect after they are voted on and published.

If the writing of the Bylaw amendment specifically included those currently holding office, then it is likely legal (however, I think it is unethical).

Keep in mind that what my be unethical isn't always illegal.
Additionally, what may be ethical might not be legal.

This is why we have courts.

Basically, what the Board decides (in this case) will likely be how it works unless someone challenges the issue in the courts OR the Board seeks a legal opinion and decides to adhere to that opinion.

What was asked is what is the wording in the Bylaws to 1) increase Board size and 2) amend the Bylaws. Generally, it requires a Membership, not Board vote to amend the Bylaws. There are instances where the Bylaws will give the Board the authority to increase the number of directors as they may see fit.

Second, the term you describe is for the first time and getting to staggered terms. If you have three members then it could be 3-2-1, but the actual term is two years.

You need to read carefully or have someone with experience do that for you.

This what my bylaws say and the non profit act of SC state. The CCRs have no mention of terms of office, election, etc.

Bylaws
4.2 Term of Office.
The election of Directors shall be by plurality, the number of nominees equal to the number of vacancies to be filled receiving the greatest number of votes being elected. However, at the meeting of the Association following expiration of the Declarant Control Period held to elect three (3) Directors or the date following expiration of the Declarant Control Period when written ballots are to be counted for the election of such Directors pursuant to Section 4.1, the two (2) nominees receiving the highest number of votes will each be elected for a term of two (2) years, and the next nominee receiving the highest number of votes will each be elected for a term of one (1) year. At the expiration of the initial term of office of each respective Director, his successor shall be elected to serve for a term of two (2) years. Unless vacated sooner, each Director shall hold office until the Director's term expires and a successor is elected.

5.2 Election.
The first election of the Board shall be conducted as set forth in Section 4.1. At such election the Members or their proxies may cast as many votes as they are entitled to exercise under the provisions of the Declaration. The persons receiving the largest number of votes shall be elected. No cumulative voting shall be permitted. Voting for Directors at a meeting shall be by secret written ballot. Voting for Directors may also be conducted by written ballot pursuant to Section 3.5(a).

8.3 Term.
The Board shall elect the officers of this Association annually and each shall hold office for one (1) year unless he or she shall sooner resign, or shall be removed, or otherwise disqualified to serve.

Non profit act of SC

SECTION 33-31-803. Number of directors.

(a) A board of directors must consist of three or more directors, with the number specified in or fixed in accordance with the articles or bylaws.

(b) The number of directors may be increased or decreased, but to no fewer than three, by amendment to or in the manner prescribed in the articles or bylaws.

HISTORY: 1994 Act No. 384, Section 1.

SECTION 33-31-805. Terms of directors generally.

(a) The articles or bylaws may specify the terms of directors. Except for designated or appointed directors, the terms of directors may not exceed five years. In the absence of a term specified in the articles or bylaws, the term of each director is one year. Directors may be elected for successive terms.

(b) A decrease in the number of directors or term of office does not shorten an incumbent director's term.

(c) Except as provided in the articles or bylaws:

(1) the term of a director filling a vacancy in the office of a director elected by members expires at the next election of directors by members; and

(2) the term of a director filling another vacancy expires at the end of the unexpired term that such director is filling.

(d) Despite the expiration of a director's term, the director continues to serve until the director's successor is elected, designated or appointed, and qualifies, or until there is a decrease in the number of directors.

HISTORY: 1994 Act No. 384, Section 1.

SECTION 33-31-806. Staggered terms for directors.

The articles or bylaws may provide for staggering the terms of directors by dividing the total number of directors into groups. The terms of office of the several groups need not be uniform.

HISTORY: 1994 Act No. 384, Section 1.

My understanding is that the South Carolina Nonprofit Corporation Act has jurisdiction over the bylaws in SC but not 100% sure. What does this tell you?

Based on what you posted, the terms for ALL directors is two terms. The elections have to be figured out based on who got the 3-2-1 terms, based on the vote count.

The addition of directors MUST be done through an amendment to the Bylaws. The Board CAN NOT do it on their own!

Actually from what the OP posted, the term is two years, AFTER the initial turnover, per Section 4.2

I may have read all of this too quickly, but it does appear that all terms for directors are two years EXCEPT for the first election after the turnover from the developer.

And it sounds like you were elected at this first election after turnover, right? If you received the least # of votes, you'd serve one year.

I do not see how the board can institute 3-year terms without Owners consent.

I do think that the Owners who served while still under developer control may be be elected to serve again.

with John of SC, it doesn't appear that your state laws offer much for you.

I was not elected after turnover. 3 new board members were. Once elected they decided to change the bylaws and added additional years to their terms. They went 3, 3, 2 years. After a month they then decided to add 2 add'l board members and they would be 2 and 1 year terms. My problem was how can they amend the bylaws? 3 new board members literally just gave themselves additional years of service.

They performed what is called a "consent to action" without meeting by the board of directors. It's unethical what they did.

You will find your answer either in your own bylaws with regards to amending OR potentially your State Non Proffit Corporation Laws (if your HOA is registered as a Non Proffit Corporation).

Not at all. Where did you get contrive that from? I just need to ensure the amendments were done legally is all.

Yeah sorry, I didn't run for the board. As a homeowner, i just wanted to understand why they can amend the bylaws and extend their terms of service. I didn't read anything in the bylaws and now i'm looking into SC law. Hopefully, i will get the answer I'm looking for.

In our bylaws this is exactly what it states:

11.2 Amendments:

Prior to close of sale of the first lot, the declarant may amend these bylaws. After sale of the first lot these bylaws may be amended, only as provided in the declaration or in the South carolina non profit corporation act of 1994.

Thats all it says.

In the consent to action without meeting by the board it mentions the following:

Whereas, Section 11.2 of the bylaws, name of community, provides that the bylaws may be amended as provided in the SC nonprofit corporation act (Title 33, chapter 31); and

Whereas, SC code sections 33-31-1020 and 33-31-1021 provide that the board of directors of a South Carolina nonprofit corporation may adopt amendments to the corporation's bylaws.

It ends there, here are sc nonprofit code sections:

33-31-1020

If a corporation has no members, or has no members entitled to vote on an amendment to the bylaws its incorporators, until directors have been chosen, and thereafter its board of directors, may adopt one or more amendments to the corporation's bylaws subject to any approval required pursuant to Section 33-31-1030. The corporation shall provide notice of any meeting of directors at which an amendment is to be approved. The notice shall be in accordance with Section 33-31-822(c). The notice also must state that the purpose, or one of the purposes, of the meeting is to consider a proposed amendment to the bylaws and contain or be accompanied by a copy or summary of the amendment or state the general nature of the amendment. The amendment must be approved by a majority of the directors in office at the time the amendment is adopted.

Section 33-31-822(c)

(a) Unless the articles or bylaws provide otherwise, action required or permitted by this chapter to be taken at a board of directors' meeting may be taken without a meeting if the action is taken by all members of the board. The action must be evidenced by one or more written consents describing the action taken, signed by each director, and included in the minutes filed with the corporate records reflecting the action taken.

(b) Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.

(c) A consent signed under this section has the effect of a meeting vote and may be described as such in any document.

33-31-1021(a) A corporation's board of directors may amend or repeal the corporation's bylaws unless:

(1) the articles of incorporation or this chapter reserves this power exclusively to the members in whole or part or requires the consent of someone pursuant to Section 33-31-1030; or

(2) the members in adopting, amending, or repealing a particular bylaw provide expressly that the board of directors may not adopt, amend, or repeal that bylaw or any bylaw on that subject.

(b) A corporation's members may amend or repeal the corporation's bylaws even though the bylaws also may be amended or repealed by its board of directors.

(c) A notice of a meeting for members at which bylaws are to be adopted, amended, or repealed shall state that the purpose, or one of the purposes, of the meeting is to consider the adoption, amendment, or repeal of bylaws and contain or be accompanied by a copy or summary of the proposal.

(d) Unless otherwise provided in the articles, an amendment to the bylaws which relates solely to the dues required for membership and which establishes or changes an amount for, or method of computation of, dues, must be approved by the members.

I hope this helps as this is everything I have. The CCRs have nothing on bylaw amendments either.

And they say California doesn't know what they're doing.

LOL ... Yep what the OP posted as their laws can pretty much lead to back and forth BS between BOD and Members. Many legislators in many states are attorneys, but they can come up with some of the dumbest statutes. Too funny ...