When it comes to asking homeowners association / condo members to approve or reject matters in North Carolina, there are generally two options: the written ballot and the written agreement. These documents and legally dictated processes may look very similar, but they are legally distinct. This article examines how and when using the written ballot versus a written agreement makes sense and how to use each effectively.
When you think about being asked to vote on something, most people probably first think of a ballot. Ballots, by definition, allow someone to vote for or against something. For in-person meetings, ballots are simply distributed, filled out, and returned to the vote administrator immediately for tabulation. Sometimes, however, the voting will not take place immediately (such as when members want time to consider a matter or the matter is being put before the membership in writing and without an in-person meeting ever taking place). North Carolina law provides that, unless prohibited or limited by the articles of incorporation or bylaws, any action that could be taken at a membership meeting can be taken without a meeting if a ballot is provided to every member.
To be valid, the ballot must clearly set forth the matter to be voted on, allow each member to vote for or against the proposed matter, and clearly indicate the time by which the ballot must be received by the association in order to be counted. Although seemingly straightforward, we frequently see confusion on this last requirement. Written ballots must include a deadline. As a result, ballots must contain “must be received by” rather than “please return by” language. Any ballot not received by the required deadline cannot be counted. This can be frustrating when an association falls just one or two votes short to pass a special assessment or complete an election, but the law simply won’t allow any extension. And, once cast, a ballot cannot be revoked, even in the face of the most heart-felt second thoughts.
The written agreement process for conducting votes looks quite a bit like the written ballot process. Like the written ballot, it will usually list items to be approved or rejected, leave space for an owner to vote for or against those matters, and include “return to” information. However, and unlike a written ballot:
- The written agreement process is not a substitute for action that could be taken at a membership meeting. Rather, it can be used for items specifically listed in an association’s governing documents, and—perhaps most important—for any amendment to a declaration under the NC Planned Community Act or Condominium Act. It cannot be used for ratification of budgets, election of directors, or any other matter that calls for a vote rather than written agreement of the membership.
- Unlike a written ballot, the written agreement is revocable. If an owner submits a written agreement, but changes their mind before the amendment is filed and notifies the Association , then the written agreement can be revoked.
- In North Carolina, there is no legally required deadline for return of a written agreement. Associations can select a “please return by” date, and then extend that deadline if they end up needing a little more time.
Membership votes, whether by written ballot, written agreement, or some other method, are important association actions. You should consult with an experienced HOA or condo attorney before deciding to submit a matter to the membership to vote to make sure you are using the best process and meeting all legal requirements. If you have any questions, please feel free to contact any of our community association attorneys to discuss further.