How literally do you interpret certain ByLaws clauses?

RichardB37 (South Carolina)
Posts: 29

Posted:

I have previously posted regarding ByLaws directed processes to try to get a better understanding of how to conduct our Association business. Here is another one that is out of whack with today's cultural habits:

Notice of Directors Meeting: When notice of any meeting of the Board of Directors is required, such notice shall be given at least three days previous to such meeting by written notice delivered personally or sent by mail to each director at his address as shown on the records of the Corporation. If mailed, such notice shall be deemed to be delivered when deposited postage prepaid in the United States mail in a sealed envelope properly addressed. Any director may waive notice of any meeting before or after the time of the meeting stated therein and attendance of a director at any meeting shall constitute a waiver of notice of such meeting except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice or waiver of notice of such meeting, unless specifically required by law, the Articles of Incorporation, these By-Laws or the Covenants.

Which means that meeting invitations sent by email are not valid! Why is this an issue for me? I have one director on the Board who has one purpose, and one purpose only... to challenge any action intended to be taken by the rest of the Board.

How do you deal with out of date wording in your own world?

SheliaH (Indiana)
Posts: 6,964

Posted:

To begin, you remember that each board member only has one vote, so if you have the numbers, you can outvote this guy or gal. Sometimes people don’t have anything original to say nor do they think things through, raising all kinds of hell over issues that’s easily resolved if they just shut up and use their noggin for a few moments.

To wit – does the board meet at the same time every month (e.g. second Tuesday at noon)? Is there a problem with providing a list of dates for the year to everyone at once, so you don’t have to go through the time and expense of sending letters by mail (especially since postage has gone up AGAIN)? If so, prepare the list, hand it to everyone and post it on your community website, if you have one, so everyone will know. Members can use the emails to notify the president or secretary if they can’t make it or will be late, or have to leave early. Save those in the association records or forward them to the other board members so everyone knows what’s going on. How difficult is that?

Regarding the larger question of out of date language, it’s been suggested that the association board review their documents with the association attorney every 7-10 years or so to see what needs to be tweaked to reflect modern times and, more importantly, changes in state and federal law. Your board might want to consider having your attorney go through it first and then charter a special homeowners committee to pore through the documents as well to see what might be added, subtracted or amended. This board member could be the liaison between that committee and the rest of the board to keep it updated on the committee’s progress. That may be enough to keep him busy for a while.

Otherwise, whenever he/she keeps objecting to whatever, ask him/her to come up with a solution and bring it to the next meeting. It’s one thing to complain, but to actually sit down to address the problem is another matter. While he/she ponders that, go on with the rest of your meeting and do what your board is charged to do.

PS: You're new to the board, so you may benefit from some basic training. Is there a local chapter of the Community Association Institute in your area (check its website)? If so, check if they have any seminars for board members - you can get information on a variety of issues like reserve studies, rules enforcement, selecting a property manager, etc. I know there are some people on this site who don't like some of the stances CAI takes in their states,, but I've always been impressed with their educational materials.

If you don't have a chapter, there are lots of books and webinars you can purchase. It may be a good idea for all of your board members to attend one or two (or several) to find out what best practices are out there and see what can be adapted to your community. Maybe the information will also enlighten this board member to where he/she will be more cooperative.

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

KerryL1 (California)
Posts: 14,550

Posted:

Does SC corporate code have no statues about how to deliver notice of board meetings? CA requires posting of meeting notices* 4 days in advance of board meetings, so that's what we do, and the 4-day notice also is posted on our website and monthly newsletter. Does SC not allow those ways of notification?? And aren't board meetings fairly regular? Monthly or quarterly?

I don't think most HOAs send email notices of meetings unless perhaps an owner requests it.

Well, you're new at this so I should point out a concern, at least for me in your following: "I have one director on the Board ..." This seems to miss that the directors are not the possessions of the president; it seems to miss that boards not presidents govern HOAs.

* In CA, the meeting ag ends must also be posted with the notice.

RoyalP
Posts: 1,104

Posted:

'My' HOA has regularly scheduled BOD meetings which are also 'noticed' to the membership via our community bulletin board @ the CBU mail area. (monthly meeting, second Mon)

in addition:

Section 10. Notice of each special meeting of the Board of Directors,
stating the time, place and purpose or purposes thereof, shall be given on
behalf of any four (4) members of the Board to each member of the Board not
less than three (3) days by mail or one (1) day by telephone.

RichardB37 (South Carolina)
Posts: 29

Posted:

Great idea re the Community Association Institute. I'll look it up. Thanks!

RichardB37 (South Carolina)
Posts: 29

Posted:

"I have one director on the Board ..."

Mea Culpa... I agree this is not phrased right. I only wish our Directors were more participatory. The tradition of this Association is one of loading everything on the President to do.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Richard

I read your quote as saying each BOD Member must be notified via US Mail at least 3 days prior to a BOD Meeting so Email would not be acceptable.

I believe any owner BOD Members could waive their right to be notified by US Mail and accept Email notices. So if the dissenter (RPIA) is on the BOD, get others to waive their right (meaning notify them via Email) and play his game and notify him via US Mail.

We organize our BOD Meetings via Email but our docs do not call for a method of notice.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By KerryL1 on 02/15/2019 12:43 PM
Does SC corporate code have no statues about how to deliver notice of board meetings? CA requires posting of meeting notices* 4 days in advance of board meetings, so that's what we do, and the 4-day notice also is posted on our website and monthly newsletter. Does SC not allow those ways of notification?? And aren't board meetings fairly regular? Monthly or quarterly?

I don't think most HOAs send email notices of meetings unless perhaps an owner requests it.

Well, you're new at this so I should point out a concern, at least for me in your following: "I have one director on the Board ..." This seems to miss that the directors are not the possessions of the president; it seems to miss that boards not presidents govern HOAs.

* In CA, the meeting ag ends must also be posted with the notice.

Kerry

SC Corporate Code is riddled with "unless the Corporation's Bylaws say otherwise thus generally kicking everything back to the associations docs. SC generally lets Corporations pretty well run as they want to unless breaking laws.

The only reference in our docs about any Meeting Notification is 30 days in writing (US Mail) to owners about our Annual Meeting including place, time, and an agenda. No restrictions/guidelines/rules on BOD Meeting notification.

AugustinD
Posts: 5,144

Posted:

Possible work-arounds:

1.
After every annual election or at the start of every calendar year, set the dates for all monthly(?) board meetings and do a snail mail notice of all these dates.

2.
Ask the difficult director if she or he will accept notice by email.

3.
Notice all directors by email at least three days in advance. If the difficult director does not show, but the board still has a quorum, proceed to conduct business. If the difficult director wants to take the HOA to court, let him or her. Report back here.

4.
The board needs to begin a campaign to amend the Bylaws, starting immediately. How many members are in your HOA? How many are needed to amend the Bylaws?

TimB4 (Tennessee)
Posts: 21,059

Posted:

we set up the next three meetings at the end of the meeting.
The dates can change if need be. However, doing it this way, everyone has the info.

Note: we publish the dates on our website as well.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Richard

An aside. Condo associations (multi story buildings, as in an apartment style building) in SC are controlled by the SC Horizontal Property act. An in-depth act. Non high rise associations (other than multi story buildings such as private homes, duplexes, townhomes, etc.) are controlled by SC Homeowners Act (new in 05/2018) and very, very shallow when it come to actual control.

Which are you? Also where are you located?

RichardB37 (South Carolina)
Posts: 29

Posted:

@ JohnC46

We are a small Property Owners Association of 44 homes. The Board manages access to and maintenance of a boat landing and a dock. There are five Board members.

RichardB37 (South Carolina)
Posts: 29

Posted:

@ AugustinD

Fully agree that we need to work on refreshing the ByLaws that we operate by. We are discussing the legal means to do that which is one reason why we are looking at ByLaw language so closely right now. One of our issues is that habits of past Boards have been very informal, and there is a lot of momentum to continue this way. I am reluctant because if we start amending ByLaw language, informal approaches are not appropriate. We need to be guided through the legal means to do this. Another of our issues is that, being a small Association with only one Common Property area to manage, our annual income is relatively small. We do not have an attorney on retainer for advice. I am researching services associated with the Community Association Institute, SC branch to learn as much as I can about resources.

RichardB37 (South Carolina)
Posts: 29

Posted:

Sorry... Charleston area

RichardB37 (South Carolina)
Posts: 29

Posted:

@ JohnC46
"The only reference in our docs about any Meeting Notification is 30 days in writing (US Mail) to owners about our Annual Meeting including place, time, and an agenda. No restrictions/guidelines/rules on BOD Meeting notification."

This caught my eye... Does your General Meeting Notification requirement specifically state US Mail, or is that the means used without a specific requirement? We have this requirement, but in the past have used a combination of FB Group event posts and a physical message sign board at the head of our street to announce the upcoming Annual Meeting of the membership. It is stated in the ByLaws to always occur on the third Tuesday of the new year. So, I guess... any resident who has read their ByLaws has been served notice in writing, but not via US Mail.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Richard

To paraphrase our Bylaws concerning the Annual Meeting:

To be held on or before April 15th...place and time chosen by the BOD provided all members of the Association are provided notice of the location by first class mail at least 30 days prior to the meeting.

Clear as a bell. We must use USPS.

RoyalP
Posts: 1,104

Posted:

..... No restrictions/guidelines/rules on BOD Meeting notification.

then SC corporate law applies:

SECTION 33 31 141. Notice.

(a) Notice may be oral or written.
(b) Notice may be communicated in person; by telephone, telegraph, teletype, facsimile transmission (FAX), or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television, or other form of public broadcast communications.
(c) Oral notice is permissible if reasonable under the circumstances and is effective when communicated if communicated in a comprehensible manner. Oral notice also includes notice through broadcast transmission.
(d) Written notice, if in a comprehensible form, is effective at the earliest or the following:
(1) when received;
(2) five days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed;
(3) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee;
(4) fifteen days after its deposit in the United States mail, if mailed correctly addressed and with other than first class, registered, or certified postage affixed.
(e) Written notice is correctly addressed to a member of a domestic or foreign corporation if addressed to the member’s address shown in the corporation’s current list of members.
(f) A written notice or report delivered as part of a newsletter, magazine or other publication regularly sent to members constitutes a written notice or report if addressed or delivered to the member’s address shown in the corporation’s current list of members, or in the case of members who are residents of the same household and who have the same address in the corporation’s current list of members, if addressed or delivered to one of such members, at the address appearing on the current list of members.
(g) Written notice is correctly addressed to a domestic or foreign corporation, authorized to transact business in this State, other than in its capacity as a member, if addressed to its registered agent or to its secretary at its principal office shown in its most recent Notice of Change of Principal Office and if none has been filed, in its articles of incorporation or application for certificate of authority.
(h) If Section 33 31 705(b) or any other provision of this chapter prescribes notice requirements for particular circumstances, those requirements govern. If articles or bylaws prescribe notice requirements, not inconsistent with this section or other provisions of this chapter, those requirements govern.

RoyalP
Posts: 1,104

Posted:

Quote:

Posted By RoyalP on 02/16/2019 2:26 PM
..... No restrictions/guidelines/rules on BOD Meeting notification.

then SC corporate law applies:

SECTION 33 31 141. Notice.

(a) Notice may be oral or written.
(b) Notice may be communicated in person; by telephone, telegraph, teletype, facsimile transmission (FAX), or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television, or other form of public broadcast communications.
(c) Oral notice is permissible if reasonable under the circumstances and is effective when communicated if communicated in a comprehensible manner. Oral notice also includes notice through broadcast transmission.
(d) Written notice, if in a comprehensible form, is effective at the earliest or the following:
(1) when received;
(2) five days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed;
(3) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee;
(4) fifteen days after its deposit in the United States mail, if mailed correctly addressed and with other than first class, registered, or certified postage affixed.
(e) Written notice is correctly addressed to a member of a domestic or foreign corporation if addressed to the member’s address shown in the corporation’s current list of members.
(f) A written notice or report delivered as part of a newsletter, magazine or other publication regularly sent to members constitutes a written notice or report if addressed or delivered to the member’s address shown in the corporation’s current list of members, or in the case of members who are residents of the same household and who have the same address in the corporation’s current list of members, if addressed or delivered to one of such members, at the address appearing on the current list of members.
(g) Written notice is correctly addressed to a domestic or foreign corporation, authorized to transact business in this State, other than in its capacity as a member, if addressed to its registered agent or to its secretary at its principal office shown in its most recent Notice of Change of Principal Office and if none has been filed, in its articles of incorporation or application for certificate of authority.
(h) If Section 33 31 705(b) or any other provision of this chapter prescribes notice requirements for particular circumstances, those requirements govern. If articles or bylaws prescribe notice requirements, not inconsistent with this section or other provisions of this chapter, those requirements govern.

+

SECTION 33 31 822. Call and notice of meetings.

(a) Unless the articles, bylaws, or subsection (c) provides otherwise, regular meetings of the board may be held without notice.
(b) Unless the articles, bylaws, or this chapter provides otherwise, special meetings of the board must be preceded by at least two days’ notice to each director of the date, time, and place, but not the purpose, of the meeting.
(c) In corporations without members, a board action to remove a director or to approve a matter that would require approval by the members if the corporation had members, is not valid unless each director is given at least seven days’ written notice that the matter will be voted upon at a directors’ meeting or unless notice is waived pursuant to Section 33 31 823.
(d) Unless the articles or bylaws provide otherwise, the presiding officer of the board, the president, or at least twenty percent of the directors then in office may call and give notice of a meeting of the board.
[/q]

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By RoyalP on 02/16/2019 2:26 PM
..... No restrictions/guidelines/rules on BOD Meeting notification.

then SC corporate law applies:

SECTION 33 31 141. Notice.

(a) Notice may be oral or written.
(b) Notice may be communicated in person; by telephone, telegraph, teletype, facsimile transmission (FAX), or other form of wire or wireless communication; or by mail or private carrier. If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television, or other form of public broadcast communications.
(c) Oral notice is permissible if reasonable under the circumstances and is effective when communicated if communicated in a comprehensible manner. Oral notice also includes notice through broadcast transmission.
(d) Written notice, if in a comprehensible form, is effective at the earliest or the following:
(1) when received;
(2) five days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed;
(3) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee;
(4) fifteen days after its deposit in the United States mail, if mailed correctly addressed and with other than first class, registered, or certified postage affixed.
(e) Written notice is correctly addressed to a member of a domestic or foreign corporation if addressed to the member’s address shown in the corporation’s current list of members.
(f) A written notice or report delivered as part of a newsletter, magazine or other publication regularly sent to members constitutes a written notice or report if addressed or delivered to the member’s address shown in the corporation’s current list of members, or in the case of members who are residents of the same household and who have the same address in the corporation’s current list of members, if addressed or delivered to one of such members, at the address appearing on the current list of members.
(g) Written notice is correctly addressed to a domestic or foreign corporation, authorized to transact business in this State, other than in its capacity as a member, if addressed to its registered agent or to its secretary at its principal office shown in its most recent Notice of Change of Principal Office and if none has been filed, in its articles of incorporation or application for certificate of authority.
(h) If Section 33 31 705(b) or any other provision of this chapter prescribes notice requirements for particular circumstances, those requirements govern. If articles or bylaws prescribe notice requirements, not inconsistent with this section or other provisions of this chapter, those requirements govern.

Kerry

As I have always said, SC pretty much lets the corporation control. In this case, the SC code is as loose as it could be. It says let them know any way you wish to. I was surprised smoke signals was not included.....LOL