South Carolina Nonprofit Corporation Act

Dawn,

You have the order of precedence in error. The Deed Restrictions (CC&Rs) are higher in precedence than the Articles of Incorporation.

For your issue #1:

The Act defers control to the Bylaws for a quorum.
If your Bylaws have a higher amount or lower amount than 10%, then the Bylaws must be complied with.
If your Bylaws are silent about quorums, than the Act takes control and you only need 10%.

You may amend the bylaws to reduce the quorum.
However, you must meet the current Bylaw quorum to hold a vote to lower the quorum amount.

For your issue #2:

If your Bylaws require 5, you meet the required number specified in the statute (no less than 3).
The membership, at the annual meeting, should vote for the number of expected vacant seats.

If there are not enough volunteers, or if you do not reach a quorum, the existing Board may appoint individuals to any vacant seat.
However, there is typically not a requirement to do so, it is an option.
As long as the Board can reach a quorum at a Board meeting, they may conduct business.
As long as the Board has at least three seats filled, they are in compliance with the law.

My previous Association had 5 seats on the Board.
One year, there were only two individuals who submitted their names to the board for nominees.
No one else volunteered from the floor - so only two seats were filled at the election, leaving 3 open seats.

That board had two options:

1) Find and appoint at least one person to the Board to comply with the law.
OR
2) Have the previous board members in those three seats to remain (as the law specifies that despite a Directors end of term, they remain on the board until their successor is elected or they resign).

I expect, your Association has the same options.

Thank you, seems I do have the Articles in the wrong order. In that case, wouldn't the CCRs trump the Act, and the Bylaws?

This (CCRs trumping the bylaws and Act) is where I land.

If these are truly the original covenants (CCRs), someone messed up by including covenants that are unrelated to restrictions on land use.

Keep in mind that even though a higher document must be complied with, they may defer that compliance (control) to your own governing documents.
Corporate law does this often. You even cited an example of that [emphasis added}:

under Section 33-31-722 Quorum requirements, the Act states
"(a) Unless this chapter, the articles, or bylaws provide for a higher or lower quorum, TEN PERCENT (caps by me) of the votes entitled to be cast on a matter must be represented at a meeting of members to constitute a quorum on that matter.

Additionally, specific words in statutes have specific meaning:

AI response: Statutory interpretation hinges on whether language imposes a mandatory duty or grants discretionary authority. "Shall," "must," and "will" signify requirements. Conversely, "may," "should," and "or" indicate options, permissions, or discretion.

see: A GUIDE TO READING, INTERPRETING AND APPLYING STATUTES from Georgetown University Law Center

Hi Ellen, this is what is says: Section 5: “Notice and Quorum for any action authorized under Sections 3 and 4…..At the first such meeting called, the presence of members or of proxies entitled to cast sixty (60%) of all the votes of each class of membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement, and the required quorum at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting.”

Section 3 refers to Amount of Assessment
Section 4 refers to Special Assessments for Capital Improvements

So it seems that 60% is needed only if assessments are being increased beyond the scope the Declaration allows or if a special assessment is needed. Otherwise the Declaration is silent on the matter.

About the number of directors --
Observations:

-- The Nonprofit Corporation Act states:
SECTION 33-31-803. Number of directors.

(a) A board of directors must consist of three or more directors, with the number specified in or fixed in accordance with the articles or bylaws.

(b) The number of directors may be increased or decreased, but to no fewer than three, by amendment to or in the manner prescribed in the articles or bylaws.

-- The Declaration and bylaws require five directors.

-- No conflict exists between the Declaration and the statute. This is because the requirement of five meets the requirement of 'not fewer than three.'

-- No conflict exists between the Bylaws and the statute, for the same reason as above.

Because there is no conflict, this means that the Declaration and Bylaws (and not the statute) control. Your board likely will not understand this reasoning, because they do not know the law the way a lawyer (or experienced director) does. They should consult a HOA attorney.

Perhaps more importantly:

Getting owners to serve on HOA boards can be difficult. If the board has vacant seats, the board should do the best it can to find qualified individuals to serve. But importantly, a board has zero obligation to appoint people it feels are not qualified. In fact if a board appointed someone they felt would do harm to the HOA, then the board has an obligation to keep the seat empty.

If the number of owners willing to serve on the board is only two, then this raises other issues. I will leave this be for now, due to time and space limitations.