6 Steps to Amending Your Association’s Governing Documents
Your governing documents are a critical component of your homeowner association (HOA) or condo community and may need to be updated occasionally. For example, document updates are required when transitioning from developer control to HOA or homeowner board control. Changes may also be necessary to make improvements to the community. Amending your governing documents can be time-consuming, but taking the time to review them for potential revisions is essential.
Follow these 6 steps to ensure you correctly amend your community’s governing documents.
Step 1. Check current applicable laws
The first step is to review your governing documents with your association’s legal counsel before making any changes to ensure the law allows those changes. Are you seeking to alter only a few provisions? Or will the changes necessitate a complete overhaul of the governing documents? Federal, state, and local laws govern associations, and any changes you make should comply with these laws. Your association’s declaration of covenants, conditions and restrictions (CC&R), dictate what a homeowner can or cannot do to their property. Fencing, pet restrictions, and short-term rentals, for example, all fall under the jurisdiction of the CC&Rs. The bylaws, on the other hand, outline how the association operates. The bylaws include membership voting, the number of board meetings required each year, as well as the methods of conducting board meetings and the election process. If you are familiar with the applicable laws and rules, it will be easier to determine what can be changed at the board level.
Step 2. Create a committee
The association's board of directors governs the community's bylaws, and like most boards, they are already busy managing multiple time-consuming projects. Instead of consuming more of their valuable meeting time, your board should create an ad hoc committee. Ad hoc committees are short-term, temporary committees formed to handle specific tasks and manage issues impacting the community and residents. With the help of an appointed chairperson, the committee can facilitate the governing document updates. The committee should set a timeline, meet regularly, and discuss suggested revisions. Once the committee makes its change recommendations, it should submit them to the board. This will simplify and help expedite the entire process.
Many tasks and responsibilities go into creating a committee, but your association doesn’t have to go it alone. A solid property management company will offer support to help your board succeed by providing understanding and a comprehensive perspective of the committee creation process.
Looking for tips on how to improve your committee? Read: How to Make HOA Committee Members More Effective
Step 3. Consult with legal counsel
If there are proposed changes to your community’s governing documents, consult with your association's legal counsel. Your association's attorney will understand applicable laws in your state that may affect the proposed amendments, helping you prevent potential legal headaches. In Florida, only licensed attorneys can prepare changes to your association's governing documents. This law may differ in your state.
"Your association’s attorney is there to guide you in the right direction," said Mara Jockers, vice president and general counsel at FirstService Residential. "The last thing your board wants is to have to go back and make additional changes after members have voted.”
Consider having the attorney attend a committee meeting to answer any questions and outline proper guidance for the planned changes.
Step 4. Get feedback from community members
Providing ample time for community members to review any proposed changes is not only a good policy but also required. Check your governing documents to determine if there are any special notice requirements, such as the number of days members must have to review changes or format regulations. Typically, the association mails or emails the proposed changes to all members and then schedules a meeting to gather feedback. It's important to hear from the association to find out if any concerns or questions still need to be addressed by the board and committee.
“Change requires community support, so gathering input from and communicating with association members before making any changes will always be beneficial,” said Ivy Montero, vice president FirstService Residential. “Feedback from the community can provide valuable insight as well as foster a sense of commitment and partnership.”
Feedback should be incorporated into the proposed changes, if warranted. However, this may require another round of meetings with the committee before it is presented to the board. While this creates an extra step, engaging the community in the process is necessary to get their support for any proposed changes.
Step 5. Put the amendment to a vote
After feedback has been incorporated into the documents and your association attorney has signed off on them, you can put the amendment up for a vote. The threshold needed for enacting the change will depend on your state's laws and your association's governing documents. The Florida Homeowners Association Act, Statute 720, requires that the affirmative vote of two-thirds of the voting interests of the association agree to amend any governing document of an association. This ensures that any amendments meet the approval of a healthy majority within the community. The Florida Condominium Act, Statute 718, should also be considered. It includes provisions that don't appear in the Florida Homeowners Association Act, as condo associations usually have stricter regulations. In Florida, associations may vote electronically on these changes. Check your state’s laws to determine the applicable rules for your association.
Step 6. Adopt and register the changes
After the vote has been taken and the amendment has passed, all that remains is implementing the proposed changes. Your governing documents will outline how to adopt the changes officially. For example, they may need to be adopted at a meeting or require written consent. Either way, a notice of the amendments must be provided to your residents. Your association attorney should also conduct a final legal review to double check all documents and file and record them where required. In Florida, changes to the governing documents must be recorded in the county's public records where the community is located.
Are you interested in learning about electronic voting for community associations? Read: How Florida Community Associations Can Vote Using an Online Voting Board
The process of updating your association’s governing documents can be stressful and take a fair amount of time. However, it’s worth it to plan and take the time needed to ensure the changes your community needs are within the law and work to improve the lives of your residents. For more information on how to amend your association’s governing documents, contact FirstService Residential.