BOD Eligibility

Background - We are a single family residence Homeowners Association in South Carolina. Our By Laws do not require a board member to be a Member of the Association. Our Declaration defines a Member as an owner of a lot and Owner is defined as the record owner of a fee simple title to any lot. Thereby, a Member is the owner of a lot whose name is recorded on the property deed.

60days prior to our Annual Membership Meeting, a call for candidates for the open board positions is sent to all Members. Subsequently, a Non Member submits his application for election to the Board. Since the By Laws do not require a board member to be a Member of the Association, the Non Member's name is included in the ballot for election.

A proposed Amendment is offered to amend those By Laws to require that all members of the Board of Directors shall be a Member of the Association as defined in the Declaration. The proposed Amendment is also included in the ballot for yes or no vote.

At our Annual Membership Meeting the Membership votes to elect the Board of Directors and also votes yes or no to any proposed Amendments.

Hypothetical -

1. The Non Member is elected to the board at the Membership Meeting.
2. The proposed Amendment to require board members to be Members of the Association is passed at the Membership Meeting.

The Association Declaration states that any Amendment of this Declaration shall become effective only when recorded or at such later date as may be specified in the Amendment itself.

The By Laws state that the provisions of the Declaration applicable to the amendment of that instrument shall apply to any amendment to these By Laws.

However, South Carolina Code of Laws Title 27 Chapter 30 (Homeowners Associations) states that rules, regulations, and amendments to rules and regulations are effective upon passage or adoption.

Question - What happens. At the same Membership Meeting the Non Member is elected to the board and the Amendment to require board members be Members of the Association passes. Since SC law supersedes Association Declaration and By Laws the amendment is effective upon passage. These are simultaneous but conflicting events. IS THE NON-MEMBER ELECTED OR NOT?

ElleN

Thank you for the reply. Sometimes I don't see the forest for the trees. I think I have my answer - the Non Member is elected.

All

I believe this area of our By Laws was poorly written. It discusses the BOD while under Declarant Control in one Article and in a subsequent Article it discusses the BOD after control is turned over to the Membership. While under Declarant control it states the BOD, who do not have to be members of the Association, is appointed by the Declarant. The subsequent Article (after control is turned over) is completely silent on whether or not BOD members need be members of the Association or not.

Our Association Attorney was consulted and advised that after control was turned over, members of the BOD still do not have to be members of the Association.

Thanks everyone for your input.

I have seen this before, both in one of my former HOAs and in other HOAs.

FWIW you all are right to seek (or have passed) an amendment to the bylaws on this subject.

I think you and I ultimately landed at the same place; namely, the elected non-owner continues to serve until such-and-such date of recording arrives.

Not too long ago California instituted a statute requiring that all HOA directors be owners at the HOA (at least post-development? can't remember).

This is a simultaneous enactment conflict and the answer hinges on agenda order.
SC law makes the amendment effective on passage so whichever vote happened first controls. If the board election came first, the non-member was validly seated under the old rules. If the amendment passed first, he was ineligible by the time the election was called.
Pull the meeting minutes. The agenda order is your answer. If the amendment came first and they seated him anyway, that's a written challenge to the board, then SC LLR if ignored.
And this is exactly why the minutes matter so much. whoever controls the written record of what happened and when effectively controls the outcome of any dispute.

No, SC law does not do this.
Your advertising violates this forum's rules.

Mr. Gropp: If you cannot follow the rules of this forum, then you are not qualified to speak about state statutes. Never mind the overwhelming evidence that you do not know state HOA statutes.