During this time of the year many HOA and Condominium Board of Directors begin to think about amending their governing documents. The “governing documents” of an association include the Declaration, Articles of Incorporation, Bylaws and the Rules & Regulations.
Besides the rules & regulations, which are promulgated by the Board of Directors, the governing documents must be approved by the members at a duly noticed meeting. Since many owners are in residence and annual members’ meeting are generally held in the first quarter of the year, now is the perfect time to review the documents to determine if any or all of the sections need updating and to get them submitted for a member vote.
There are many reasons for updating the governing documents. These include bringing outdated documents up to date with the current laws, adding into the documents certain advantages provided by new laws, eliminating obsolete, conflicting or confusing provisions, providing the association with powers to operate efficiently and effectively, and to tailor the documents to fit with the current expectations and demands of the owners.
Common areas tending to need updating are parking and vehicle provisions relating to pick-up trucks and commercial vehicles; leasing and guest policies; assessment liability and providing the right to accelerate assessments should an owner become delinquent; clarification of certain maintenance responsibilities of the owner verses those of the association; pet restrictions and enforcement authority when the owner fails to clean up after their pet; prohibitions from feeding wildlife; and simple protective measures to limit the association’s potential liability for the actions of wild animals (including, but not limited to, bear, alligators, cougars, snapping turtles, wild boar, etc.).
Determining whether to amend certain sections of the existing documents or prepare a brand-new set of governing documents is also a question the Board must address. Documents which are relatively up-to-date may only need a few sections changed to fit the association’s goals. Older documents (8 years or older) may be outdated. Also, if the association is still working under the original governing documents, i.e., those created by the developer, these may be riddled with developer language and may not be in conformity with the current law or needs and desires of the association.
As stated, the governing documents (besides the board rules) require a member vote. The vote needed to pass the amendment(s) in each community differ from one another and indeed may differ between the documents themselves (i.e., the declaration may require a 2/3 vote whereas the bylaws may only require a majority vote). These provisions are contained in the existing documents and must be reviewed in detail. That said, certain amendments may even require 100% approval, so its best if you check with your local homeowners association attorney to ensure you are obtaining the required vote.
Once the required approval vote is obtained, the documents are recorded in the public records of the county. If the Articles of Incorporation are amended, they are filled with the Secretary of the State. Copies of any amendments should be provided to the members and the association will retain a copy in the official records of the association. If the association posts its governing documents on their website, the new amendments would also be posted and available on the association’s website. Once the documents are recorded they become effective and may be utilized by the association and its members.
Speak with your homeowners association attorney to determine the best strategy in updating your documents. As stated, it may be as easy as amending a few sections or you may need a complete overhaul. An association attorney should be able to inform you fairly quickly on which would be best for the association.
Diane M. Simons, Esq., received a LL.M. from Georgetown University Law Center, in 2002 after graduating from the University of Richmond School of Law in 2001. Ms. Simons focuses her practice on matters involving condominium and homeowners’ association law. She assists her associations in reviewing and preparing governing documents; cable, management and landscaping contracts; and other agreements. Ms. Simons also represents her clients in arbitration, mediation and litigation dealing with construction defect, recall and election disputes, evictions, foreclosures, and covenant enforcement matters. You may contact Ms. Simons at 239-963-5333 or DSimons@SimonsLawGroup.com.