Q: Our condominium documents are older and need to be updated. How do we begin this process?
A: The first step is to determine who is going to spearhead the process. Some communities will appoint a committee to work with counsel to handle all of the drafting. Others appoint a single individual and others keep the entire Board involved in the drafting phase.
Next, the Association needs to determine its goals. The document overhaul process is an opportunity to address a number of concerns. First, you can fix glitches that have been discovered in the documents. If the documents prohibit 1 car garages yet the developer constructed 1 car garages, this is a glitch.
Second, it provides an opportunity to remove developer references and development language. Although you would assume purchasers would know if the community was still under developer control, it can be confusing in newer communities.
Third, it provides an opportunity to update the documents with current statutes and case law. Some communities incur a lot of legal fees trying to determine whether the statute or whether the governing documents control in certain situations. If you are experiencing this conflict, the document revision process can resolve some of these conflicts.
Fourth, the amendment process can provide flexibility. Some communities desire to make changes through rule-making as opposed to changing the covenants. Because the amendment process can be expensive and time consuming, some communities overhaul the documents to provide more flexibility and deference to the Board to avoid the need for future amendments to the Declaration or Bylaws themselves. Of course, other communities amend the documents to remove discretionary authority as well.
Finally, the amendment process can effectuate desired changes. If there is a sentiment that the covenants are too restrictive or too loose in certain areas, the amendment process can address these sentiments.
After the Board has completed a final draft, I generally find that a town hall meeting is helpful. If you provide owners with enough time to read the draft, many times the owners are able to provide helpful and constructive feedback to make the documents better. The town hall meeting also helps you determine whether there were unintended reactions from the membership to various changes.
Eventually, the project goes to a vote. If you have any questions about the benefits and consequences of document amendments, reach out to your legal counsel.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.