For several years your community has been considering a controversial amendment which would limit the percentage of units which could be leased. A previous Board of Directors asked the Association’s attorney to draft the amendment to the Declaration which would accomplish this goal. A special meeting was scheduled for July 15, 2005 and proper notice was sent to all of the Owners in the community. Along with the timely notice of the meeting which stated the time, place and purpose of the meeting, the Board of Directors sent a Proxy and a Ballot for the Amendment. Across the ballot, in bold, capitalized letters, were the words: “BALLOT TO BE RETURNED BY JULY 15, 2005.”
Despite offering door prizes, only the members of the Board of Directors and a handful of Owners showed up for the meeting. Together with the Proxies which had been given to the Secretary of the Association there was one person over the quorum requirement. The President was elated. It would be easy to get an affirmative vote of two thirds of the Owners present at the meeting to vote in favor of the leasing amendment! However, the Secretary, who had carefully reviewed the amendment provision of the Declaration, pointed out that an amendment required the affirmative vote of two-thirds of the Total Association Vote. Total Association Vote was a defined term. It meant “the votes attributable to the entire membership of the Association as of the record date for such action, whether or not such members are present or represented at the meeting, if any, where such votes are to be cast.” Clearly the turnout was a fraction of the two-thirds of the Total Association Vote. Disappointed, but ever hopeful, the Association President turned to the Secretary and asked what could be done. Without pausing, the Secretary suggested that a provision of the Association’s well-drafted Bylaws contained a provision which stated that that any action which could be taken at the meeting could also be taken outside of a meeting. The President, emulating General Eisenhower’s organization for D-Day, divided the community into sections and dispatched the Board Members and other volunteers, ballots in hand.
The summer was hot. The Board Members and volunteers were busy. The kids had soccer camp. Families took their annual trips to Panama City and to visit to the Grandparents. Because the Board of Directors had hired good landscapers and enforced the covenants so well, many homes sold over the summer and new families moved in. At the September meeting of the Board of Directors, the President asked for all of the completed Ballots. They were still fifty votes short of the requisite two-thirds of the Total Association Vote. Undaunted, the President urged the Board Members to go forth and collect the necessary remaining votes. The new Owners were particularly enthusiastic about the amendment and by the end of the year, the President had enough votes to pass the amendment.
In January 2006, the President called the attorney and told her that they had enough affirmative votes for the leasing amendment and to please record the Amendment. She would forward all of the Ballots to the law firm. When the ballots arrived, the attorney saw that many of them were dated after July 15, 2006.
Although it was terrible news to the Board of Directors and the volunteers who had worked so hard, the attorney had to tell them that the election was invalid. The ballots specified that they had to be returned by July 15, 2005. When that date came . . . and went, that election on the leasing amendment was over. The Georgia non-profit corporations code specifies that “All solicitation for votes taken by written ballot shall . . . specify the time by which a ballot must be received by the corporation in order to be counted.” O.C.G.A. § 14-3-08 (d) (3). The ballot itself complied with the code, as to form; but the Association erred when it continued to solicit votes after the due date.
Of course the Board of Directors can place the amendment on the agenda for the next annual meeting, or conduct another form of vote on the amendment which is authorized by their Declaration. This year, however, the Board will give itself a little more leeway on the date by which the votes need to be returned!