Homeowners association (HOA) boards and managers are no strangers to being required to provide notice of meetings and various other HOA actions. Of course, boards are right to refer to their HOA’s specific governing documents as to how many days’ notice, and what form of notice, might be required for certain actions. However, for the overwhelming majority of South Carolina HOAs which are nonprofit corporations, the South Carolina Nonprofit Corporation Act[1] (the “Act”) contains an often-overlooked provision governing when first-class mailed notice is effective which can mean the difference between sufficient and insufficient notice based on the date of mailing.
Specifically, the Act provides that written notice, if in a comprehensible form, is effective at the earliest of the following:
- When received;
- Five days after its deposit in the United States mail, if mailed correctly addressed and with first class postage affixed…[2][3]
This means that, according to the Act, notice sent by first class mail is not effective upon placing the notice in the mail, but rather five days after being placed in the mail.
In other words, notice placed in the mail fifteen days prior to a meeting would only be effectively providing ten days’ notice. Of course, it is important that sufficient days’ notice is provided for meetings and other certain HOA actions, so HOAs should be careful to take this provision into consideration when deciding how far in advance to mail such notices.
We often see HOA actions challenged on the basis of lack of proper notice, and this can create real problems, to include, but not be limited to, invalidating the actions taken without the technically proper notice. While technically deficient notice may, in certain instances, not lead to the invalidation of the actions taken, it is certainly ideal to avoid such challenges in any event. Moreover, ensuring that notice is provided in enough time to fulfill the requirements of the HOA’s governing documents and the Act fosters community trust while encouraging an informed and engaged membership. Therefore, it is prudent from a legal and practical perspective to send first-class mailed notices with the understanding that they need to be sent at least five days prior to the date upon which notice is to be effective.
While it is important to be familiar with the notice provisions of the Act, HOAs should also be aware that their governing documents may include even more stringent notice requirements than those set forth in the Act.
Pursuant to the Act, if a corporation’s articles or bylaws prescribe notice requirements, not inconsistent with the Act, the requirements of the articles or bylaws govern.[4] We interpret this to mean that HOA governing documents can prescribe stricter notice requirements, but not more relaxed notice requirements, and this is in keeping with the Official Comment to the Act which is silent as to allowing more relaxed provisions yet provides, “…[I]f a corporation’s articles or bylaws provide different notice requirements, those requirements, if not inconsistent with the Act are valid. For example, bylaws may provide more stringent notice requirements…”[5] Therefore, it would be reasonable to conclude that an HOA’s governing documents might actually provide for an even longer duration of time than five days before placement in the mail is considered effective. Generally speaking, it is our hope that this article will bring attention to this “five day” provision for first-class mail set forth in the Act, as well as the importance of board familiarity with the Act and how it might relate to their community’s governing document-specific notice requirements. Of course, it is also prudent to consult with legal counsel when question arises as to legal notice requirements, under the Act, governing documents, or otherwise.
This article is not intended to be an exhaustive discussion of notice requirements for HOAs, nor any guarantee of the outcome of any litigation regarding the same. Our attorneys at McCabe, Trotter & Beverly, P.C. are experienced and well-equipped to answer questions you may have regarding this topic. Please contact us at 803–724–5000 for further information.
Dean Hayes
McCabe, Trotter & Beverly, P.C. blogs and other content are for educational and informational purposes only. This is not legal advice and does not create an attorney/client relationship between McCabe, Trotter & Beverly, P.C. and readers. Readers should consult an attorney to understand how this information relates to their personal situation and circumstances. You should not use McCabe, Trotter & Beverly, P.C. blogs or content as a substitute for legal advice from a licensed attorney.
[1] S.C. Code Ann. § 33-31-101 et seq.
[2] S.C. Code Ann. § 33-31-141(d) (emphasis added).
[3] The Act sets forth other methods of notice as well as other “effective dates” for those different methods, but this article only concerns notice by first-class mail.
[4] S.C. Code Ann. § 33-31-141(h).
[5] S.C. Code Ann. § 33-31-141 Official Comment (emphasis added).