Amending Governing Documents
WHEN TO REWRITE YOUR GOVERNING DOCUMENTS
WesternLaw Group is frequently asked to draft amendments for an association’s governing documents – most commonly, amending the Declaration, Bylaws or Rules. In many such instances, our response is that a total rewrite would better meet the community’s goals. Below are some of the items we look for in determining if a rewrite is a more appropriate action than applying a “band-aid amendment”.
Indicators that a rewrite is warranted
There are several indicators that a document may be in need or a rewrite.
- Is the document greater than 10 years old? If yes, a rewrite is likely warranted. Significant HOA legislation has been introduced over the last decade. Those changes ought to be represented in the association’s governing documents.
- Is there overlap or conflict between documents? If yes, such overlap or conflict is likely to create confusion for the Board and/or homeowners. Ensuring that each document is consistent with the larger body of governing documents creates a community that is both more understandable and predictable.
- Does the Board or property manager frequently have questions for the association’s attorney? If yes, it is likely that a clearer document would be helpful to the community. While the governing documents are legal documents, they should nevertheless be able to be read and understood by a lay person.
- Does the document include outdated sections (e.g. sections regarding the declarant or developer of the community)? If yes, such sections may cause confusion regarding land rights, content of the Board, etc. Removing such sections produces a clearer document – a benefit to all who have to work with the document.
- Does the document accurately reflect the association’s interests? For instance, some covenants from the 1970’s would seem strange and unnecessarily prohibitive in today’s communities. Choosing to ignore such rules and regulations, rather than amend or rewrite the document, may set a dangerous precedent with regard to the other rules that the Board wants to actively enforce.
If your association has one or more of the below indicators, please contact our office to discuss possible amendment of your association’s documents.
What else should be considered?
If one document will be rewritten, the association’s attorney will also review the rest of the governing documents to ensure consistency and no overlap. For instance, if your community decides to amend its Declaration, it is possible that your Bylaws or Rules may need to be revised as well. It is important that the governing documents are consistent and complement each other with minimal or no overlap.
How do we get a rewrite approved?
Amending or rewriting a declaration is generally more difficult than amending other governing documents. While the amendment provisions vary by association, approving a Declaration amendment or rewrite commonly requires between 51%-67% of the total owner vote. An amendment to the bylaws or Articles commonly requires a majority or 2/3 vote of a quorum. If an association has difficulty gathering these votes, there are statutory provisions that the association attorney may use to help enact the rewritten governing documents.
Please feel free to contact our office with any questions you have regarding rewriting some or all of your association’s governing documents.