Tips for Amending Governing Documents
By: Michael Sottolano
The governing documents of a community association include the recorded covenants (often called the declaration, deed of restrictions, CC&Rs, etc.), bylaws and, if the association is an incorporated entity, its articles of incorporation. The governing documents and applicable law, such as the Virginia property owners’ association, condominium and nonstock corporation acts, may also establish authority for the association to adopt, promulgate and enforce rules, regulations and policies to assist with governance of the association and its members.
Over time, it may become necessary to amend or restate the association’s governing documents or rules to address changing needs, technological advancements, legal requirements, or to clarify ambiguous language. Association rules can usually be changed by a majority vote of the board at a duly noticed board meeting (and subsequent notification to the members of approved changes).
The process of amending and restating recorded covenants (or recorded condominium bylaws), however, can be complex and often requires the approval of a set threshold of the association’s members. The association’s legal counsel can assist in the process of amending these governing documents by drafting language for the proposed amendments, preparing the documents necessary to facilitate amendment, and counsel the board of directors through the amendment process. Here are some general guidelines that community association boards might consider when approaching amending governing documents – these may vary, of course, depending on the nature and scope of the amendment project:
- Identify the need for change: The board should first determine the reasons why an amendment or restatement is necessary. This might include the need to update outdated provisions, address conflicts, inconsistencies or ambiguities, add or remove restrictions that are problematic to enforce or not desired, or incorporate changes to the law. Clearly identifying the need for change early in the process will help focus the amendment efforts.
- Seek legal counsel: Community association boards should consult with an attorney experienced in community association law when considering amending the association’s governing documents. The attorney can provide guidance on the legal process, ensure compliance with applicable laws and regulations, and help draft the documents needed to facilitate amendment.
- Use assistance of an ad-hoc committee: The board may consider forming an ad-hoc committee made up of board members and/or community volunteers to review the association’s governing documents and generate a “wish list” of items that would be beneficial to include in the governing documents and a “strike list” of items that are of concern, outdated, or otherwise inapplicable to the community and may warrant removal from the governing documents. The board might also enlist this committee to help review proposed changes, gather input from the community, and provide input on whether the amendments align with the community’s goals and needs.
- Communicate with the community: The board of directors should communicate with the community regarding the proposed amendments and why the board is considering these changes to the governing documents. This could be done via a letter sent to the members or in an article published in a community newsletter and may include explanation of the reasons for the changes, provide opportunities for feedback, and address any concerns or questions known or anticipated from community members. Boards may also want to consider holding a special “townhall” style meeting to allow owners to voice their thoughts, opinions, concerns, and suggestions regarding the proposed amendments. Taking community input into account may help address any concerns or issues and ensure that the changes have broad community support, even if a handful of members object to some proposals. After receiving community input regarding the proposed amendments, the board may want to consider revising the language of the proposed amendments, ideally with the assistance of the association’s legal counsel, to incorporate helpful suggestions and before soliciting members’ formal approval of the amendments.
- Draft the amendments and related documents: It is typically best to have legal counsel prepare language for the proposed amendments along with the documents needed to facilitate approval of the members of the proposed amendments. The amendment procedures for the applicable governing document(s) will dictate, procedurally, how to amend that particular document. Typically, recorded covenants and condominium bylaws may be changed via affirmative vote and/or written consent of some minimum threshold of the association’s members or their voting interests. The association’s legal counsel can review the association’s governing document(s) and advise the board on how to amend in a manner that satisfies the requirements of the particular governing document and applicable law. Boards should be aware that it’s important to be precise and clear in the language used for amendments and to strictly comply with the applicable amendment procedures required under the governing documents and applicable law in order to avoid successful challenge of the adopted amendment.
- Approve the changes: Once the community has had a reasonable time to review and provide feedback on the proposed amendments, then the board can move forward with scheduling a meeting where a vote on the proposed amendments can take place (if affirmative vote is required to amend) and/or commence soliciting written consent from members of the proposed amendments (if written approval, rather than a vote, is required to amend). The board should clearly communicate the approval process and timeline for proposed amendments to community members to ensure a fair and transparent process.
- Implement the changes: If the proposed amendments are approved, then the board should take, in conjunction and consistent with the advice of legal counsel, the necessary steps to implement the changes. This may include preparation and recordation of a recordable form of the amendment in the municipality’s land records, execution by the association’s principal officer (typically the president) and any other officers required (potentially the secretary as a witness) of documents which confirm the language of the amendment and that the procedural requirements to amend were satisfied, notifying community members of the changes to the governing document(s), and updating the association’s records and any relevant policies or procedures which may be impacted. Some governing documents (especially older ones) may require that the owners’ signatures, or even notarized signatures, be attached to the recorded amendment instrument.
- Review periodically: It is a good practice for associations to periodically review their governing documents to ensure they contain provisions that are relevant, enforceable, comply with applicable (ever-changing) laws, and help the board in fulfilling its duties and responsibilities to the association and its members. The board may also want to consider establishing a process for regular review and amendment, if necessary, of its governing documents and rules to address changing needs or legal requirements.
Amending the governing documents of a community association can be a significant undertaking that requires careful planning, legal expertise, and community involvement. Depending on the circumstances, the above guidelines can help a community’s board of directors approach the process in a systematic and inclusive manner designed to produce updated and well-crafted governing documents that meet the needs of the community.