Interpreting Ballots by Mail Clause of ByLaws

Started by RichardB37 • 5 replies • 585 views

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RichardB37 (South Carolina)
Posts: 29

Posted:

Our ByLaws include a clause that reads:

Ballots by Mail: When required by the Board of Directors, there shall be sent with notices of regular or special meeting of the Corporation, a statement of certain motions to be introduced for vote of the members and a ballot on which each member may vote for or against the motion. Each ballot which is presented at such meeting shall be counted in calculating the quorum requirements set out in Section 6 of the Article II. Provided, however, such ballots shall not be counted in determining whether a quorum is present to vote upon motions not appearing on the ballot.

My question involves collecting a membership vote on a single actionable item by paper ballot. If the action item were described in a mailed ballot to each homeowner, and the returned ballots collected, can the supported action be implemented (assuming favorable vote by the membership) without calling the Special Meeting?

SheliaH (Indiana)
Posts: 6,964

Posted:

Well the first part of this reads in part "there shall be sent with notices of regular OR special meeting of the Corporation..." so it would appear the ballots could be counted at a regular board meeting or special meeting and then the board could act (or not) based on the results. You could designate people to count the ballots in front of everyone, which shouldn't take forever, depending on the number submitted. Just be sure you have the proper number of votes to approve the issue as specified by your documents (e.g. at least 51% of homeowners have to approve X).

However, regular meetings are usually filled with enough items on the agenda as it is, such as committee reports, approving the last meeting's minutes, etc. If this vote will be on a controversial issue, such as a special assessment, I would call a special meeting so you could have the discussion, count the votes (to prevent accusations of collusion) and then go home. It shouldn't last all night - give everyone a deadline when the ballots should be submitted (e.g. noon on the day before the meeting).

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Richard

I am in SC, Columbia area. Last year we were considering removing an HOA's obligation from our Covenants. We discussed with our lawyer (one of the largest HOA law practices in SC) about do such with a mailed and returned ballot. Also we wanted to allow 90 days (from mailing to counting) so we would have time to talk to individual owners. He said no problem.

We decided against removing the obligation so we never went any further.

RichardB37 (South Carolina)
Posts: 29

Posted:

If a ballot was mailed without being tied to a meeting invitation, would this make it invalid? How tightly do you adhere to the letter versus the spirit of your own Association ByLaws?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By RichardB37 on 02/14/2019 7:08 AM
If a ballot was mailed without being tied to a meeting invitation, would this make it invalid? How tightly do you adhere to the letter versus the spirit of your own Association ByLaws?

When we discussed a mailed out ballot with our attorney, it was not going to be associated with any meeting. We were going to have some informational meetings to discuss the proposed change but the ballot was going to be mailed to each owner at a later time.

To answer your questions directly:

1. My opinion is a ballot mailed without being tied to a meeting is valid.

2. When it comes to changing Covenants and/or Bylaws we play tight as witnessed by us asking our attorney's advice on the changes we were thinking about versus do it willy nilly.

The part of your docs you quoted I read to be saying there cannot be voting on an issue at a meeting unless all are notified of the issue and that it will be voted on at the meeting. It is not saying a mailed out ballot is prohibited.

SueW6 (Michigan)
Posts: 814

Posted:

Richard
To answer your original question:

The motion ( put into ballot form) is tied to a meeting. In fact the date of the meeting has to be announced with the ballot.

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