NC GENERAL STATUTES- PART 4
1. Does any applicable statute regulate solar panels? Clotheslines?
NCGS § 22B-20 (“Deed Restrictions and Other Agreements Prohibiting Solar Collectors”) makes void and unenforceable, except in listed instances, any deed restriction, covenant, or similar binding agreement that runs with the land that would prohibit, or have the effect of prohibiting, the installation of a solar collector for a residential property. The statute applies to “residential property,” but specifically excludes any condominium located in a multi-story building containing units having horizontal boundaries.
No North Carolina state statute regulates clotheslines.
42. What are the rules regarding placement of satellite dishes or antennas on my property? (Link to the OTARD Fact Sheet.)
No North Carolina statutes govern the placement of satellite dishes or antennas on property beyond those contained in federal regulations.
43. What dispute resolution options do I have if I have a problem with the board?
NCGS § 7A-38.3F mandates that associations notify members each year of the right to request voluntary mediation of disputes; however, either party may decline mediation. (NOTE: Disputes related solely to a member’s failure to timely pay an association assessment or any fines or fees associated with the levying or collection of an association assessment are not covered by the mediation statute.)
44. What is the state law regarding recalling board members?
For planned communities created on or after January 1, 1999, and governed by the NC Planned Community Act: “Notwithstanding any provision of the declaration or bylaws to the contrary, the lot owners, by a majority vote of all persons present and entitled to vote at any meeting of the lot owners at which a quorum is present, may remove any member of the executive board with or without cause, other than a member appointed by the declarant.” NCGS § 47F-3-103.
For condominium associations created after October 1, 1986: “Notwithstanding any provision of the declaration or bylaws to the contrary, the unit owners, by at least sixty seven percent (67%) vote of all persons present and entitled to vote at any meeting of the unit owners at which a quorum is present, may remove any member of the executive board with or without cause, other than members appointed by the declarant.” NCGS § 47C-3-103
For incorporated associations, the NC Nonprofit Act has detailed provisions for removing directors, which would be applicable to older associations. In addition, some provisions, such as removal of directors by judicial proceeding under NCGS § 55A-8-10, would seem to be available to any incorporated association:
§ 55A-8-08. Removal of directors elected by members or directors.
(a) The members may remove one or more directors elected by them with or without cause unless the articles of incorporation provide that directors may be removed only for cause.
(b) If a director is elected by a class, chapter or other organizational unit, or by region or other geographic grouping, the director may be removed only by that class, chapter, unit, or grouping.
(c) Except as provided in subsection (i) of this section, a director may be removed under subsection (a) or (b) of this section, only if the number of votes cast to remove the director would be sufficient to elect the director at a meeting to elect directors.
(d) If cumulative voting is authorized, a director shall not be removed:
(1) If the number of votes; or
(2) If the director was elected by a class, chapter, unit, or grouping of members, the number of votes of that class, chapter, unit, or grouping;
sufficient to elect the director under cumulative voting, if an election were then being held, is voted against the director’s removal.
(e) A director elected by members may be removed by the members only at a meeting called for the purpose of removing the director and the meeting notice shall state that the purpose, or one of the purposes, of the meeting is removal of the director.
(f) In computing whether a director is protected from removal under subsections (b) through (d) of this section, it should be assumed that the votes against removal are cast in an election for the number of directors of the class to which the director to be removed belonged on the date of that director’s election.
(g) An entire board of directors may be removed under subsections (a) through (e) of this section.
(h) A majority of the directors then in office or such greater number as is set forth in the articles of incorporation or bylaws may, subject to any limitation in the articles of incorporation or bylaws, remove any director elected by the board of directors; provided, however, that a director elected by the board to fill the vacancy of a director elected by the members may be removed by the members, but not the board.
(i) Notwithstanding any other provision of this section, if, at the beginning of a director’s term on the board of directors, the articles of incorporation or bylaws provide that the director may be removed by the board for missing a specified number of board meetings, the board may remove the director for failing to attend the specified number of meetings. The director may be removed only if a majority of the directors then in office vote for the removal.
(j) Notwithstanding any other provision of this section, the articles of incorporation or bylaws may provide that directors elected after the effective date of such provision shall be removed automatically for missing a specified number of board meetings.
(k) The articles of incorporation may:
(1) Limit the application of this section in the case of a charitable or religious corporation; and
(2) Set forth the vote and procedures by which the board of directors or any person may remove with or without cause a director elected by the members or the board.
§ 55A-8-09. Removal of designated or appointed directors.
(a) A designated director may be removed by an amendment to the articles of incorporation or bylaws deleting or changing the provision containing the designation.
(b) Except as otherwise provided in the articles of incorporation or bylaws:
(1) An appointed director may be removed with or without cause by the person appointing the director;
(2) The person removing the director shall do so by giving written notice of the removal to the director and to the corporation; and
(3) A removal is effective when the notice is effective unless the notice specifies a future effective date.
(c) Notwithstanding any other provision of this section, the articles of incorporation or bylaws may provide that directors appointed after the effective date of such provision shall be removed automatically for missing a specified number of board meetings.
§ 55A-8-10. Removal of directors by judicial proceeding.
(a) The superior court of the county where a corporation’s principal office (or, if there is none in this State, its registered office) is located may remove any director of the corporation from office in a proceeding commenced either by the corporation or by its members holding at least ten percent (10%) of the votes entitled to be cast of any class of members, if the court finds that:
(1) The director engaged in fraudulent or dishonest conduct, or gross abuse of authority or discretion, with respect to the corporation, or a final judgment has been entered finding that the director has violated a duty set forth in G.S. 55A-8-30 through G.S. 55A-8-33, and
(2) Removal is in the best interest of the corporation.
(b) The court that removes a director may bar the director from serving on the board of directors for a period prescribed by the court.
(c) If members commence a proceeding under subsection (a) of this section, the corporation shall be made a party defendant.
AMENDMENT OF DOCUMENTS
45. Does state statute provide for the amendment of the association’s documents?
1. What percentage of the owners must approve?
2. Is percentage based on those voting or totality of the number of owners?
3. Is the vote taken at a meeting or is it required to be by written consent?
4. Is mortgagee approval required? Is there a statutory process for obtaining mortgagee approval or providing for a presumptive mortgagee approval?
Generally, amendment of the association’s documents is governed by the documents.
For planned communities, except in cases of amendments that may be executed by a declarant under the terms of the declaration or by certain lot owners under G.S. 47F-2-118(b), the declaration may be amended only by affirmative vote or written agreement signed by lot owners of lots to which at least sixty seven percent (67%) of the votes in the association are allocated, or any larger majority the declaration specifies or by the declarant if necessary for the exercise of any development right. The declaration may specify a smaller number only if all of the lots are restricted exclusively to nonresidential use. (NCGS § 47F-2-117(a)) Further, NCGS § 47F-2-117(d) provides that “any amendment passed pursuant to the provisions of this section or the procedures provided for in the declaration are presumed valid and enforceable.” These provisions apply retroactively to older associations.
For condominium associations created on or after October 1, 1986, except in cases of amendments that may be executed by a declarant, the association, or certain unit owners, the declaration may be amended only by affirmative vote of or a written agreement signed by, unit owners of units to which at least sixty seven percent (67%) of the votes in the association are allocated or any larger majority the declaration specifies. The declaration may specify a smaller number only if all of the units are restricted exclusively to nonresidential use. (NCGS § 47C-2-117(a))
USE OF TECHNOLOGY
46. Other than a written document or by voting at a meeting, can a Common
Interest Community use the most advanced technology, including e-mail or the
1. Provide notice to Members of any meeting?;
2. Obtain votes of the Members?;
3. Obtain the consents, acknowledgements or ratifications or Members
4. Obtain the electronic signatures of Members?
Both the NC Planned Community Act (NCGS § 47F-3-108(a)) and the NC Condominium Act (NCGS § 47C-3-108(a)) permit notice of membership meetings to be sent by electronic means, including by electronic mail to an electronic mailing address, so long as designated in writing by the lot owner. In addition, consents, acknowledgements, and ratifications could be sent as an attachment to an e-mail. While the Uniform Electronic Transactions Act (NCGS § 66-315) might permit broader association use of electronic signatures, all parties would have to agree to conduct transactions by such means. Generally, there is no provision of the NC Planned Community Act or the NC Condominium Act to permit e-mail or internet voting.
The NC Nonprofit Act (NCGS § 55A-8-20) permits participation and voting at Board meetings by any means of communication by which all directors participating may simultaneously hear each other during the meeting. Also, action without a meeting (NCGS § 55A-8-21) may be permitted if all directors concur in writing, which has generally been interpreted to include e-mail or fax.