HOA Files: Amending your HOA documents
Special to the Daily
As your HOA community evolves, its demographics alter, its needs and desires change, buildings and facilities age, new laws come into play; should your governing documents be amended to keep pace with these new realities and to ensure legal compliance?
Revising your governing documents may be as simple as by board resolution, or as difficult as approval by a large percentage of the membership. Both the Bylaws and the Rules are usually considered “working documents”, easily being updated with the changing needs of the community. The Declarations, on the other hand, are usually more rigidly established within a strict legal framework, and are demanding, very expensive, and time consuming to amend.
If you are considering amending any governing document, follow these 7 steps to help ensure its success:
1. Understand your documents; where might they overlap, where might they conflict. Determine specifically what you are trying to resolve. Is the proposed amendment in the best interest of the community? Draft the amendment, share it with community members, and be constructively critical in gauging its effectiveness. You cannot amend a provision that would place it in conflict with state laws.
2. Which document requires changing? Do you have the authority to make the change? Review the amendment clause in the document to precisely determine what it will take to get it passed, and by whom. Do current state laws override the amendment clause? For example, your Rules are usually amended by the board at any time at a meeting duly called for such; whereas, the Declarations might state a high percentage of owners (say 75 percent) to vote in favor of the amendment (a recent CCIOA provision will reduce this percentage to 67 percent).
3. Frequently communicate with the owners, educating them as to the necessity of the amendment and what you are trying to achieve by it. If the members doubt its usefulness, the amendment may have little effect or possibility of conformity.
4. Consider listing any other possible changes in the same document and combine all into the one amendment resolution. Amending your amendment clause will permit a greater ease of future amendments. If one amendment would be particularly unpopular, perhaps table this for another time.
5. As a last option to amending a governing document which requires a quorum that cannot be achieved, the court can be petitioned to effect the change.
6. Always consider the advice of an attorney for amendments. If amending the Declarations, it is necessary.
7. Once the official vote has been recorded, attach the amendment or physically revise the document to include the new provision(s), formalize the revised document by recording it with the County or State if required, update the master document file, then make the revised document immediately available to all owners. Solicit owner feedback to gauge the success of the new provision(s).
Murray Bain is a Reserve Studies Provider and HOA consultant. He can be reached at (970) 485-0829 or at http://www.summithoaservices.com
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