Client Status Request
BLOG
Amending a community association’s governing documents can be a daunting task for many associations, including some that direly need updates to their declarations and bylaws. For many such communities, the best approach is to heed the advice that my colleague Lindsey Thurswell Lehr shared in her Miami Herald column a couple of years ago and start by amending their amendments process, then implementing all the important changes they have been forsaking.
About Governing Documents
Because governing documents are originally created by a community’s developer, they can include outdated provisions that communities may want or need to address. Those problematic edicts often begin with the amendment process itself, which for many older communities requires a vote of the unit-owner membership with a minimum approval of two-thirds or even three-quarters of all the owners for an amendment to be adopted.
Many communities have been unable to achieve votes from two-thirds of their unit owners at all their prior annual or special membership meetings, including the meetings at which board member elections are conducted. For those associations, obtaining votes of approval from two-thirds or 75 percent of all their members would be extremely difficult, so they often just give up on implementing important or desired changes and make do as best they can.
Amending Governing Documents
Some associations try to circumvent the issue by foregoing the amendment of the provisions contained in the association’s declaration or bylaws, and instead enacting new rules which typically require just a simple majority vote of the directors. However, by not taking a vote to formally amend the provisions of the declaration or bylaws, directors can expose an association to liability or claims from owners challenging unrecorded restrictions and unauthorized modifications in court.
Instead, as Lindsey suggested in her July 2022 column, such associations should pull out all the stops to get out the vote and amend their amendments process to lower the threshold for future changes to their governing documents. For instance, changing the requirement for passage of an amendment to a majority of all owners, or even a majority of the votes cast at a meeting of the owners at which a quorum is achieved (whether in-person, online, or by proxy), may thereafter simplify effectuating future changes.
There are a number of amendments associations tend to consider, including whether to add or remove provisions known as the “Kaufman language” to automatically incorporate all future changes to Florida’s applicable community association statutes into their declaration and bylaws.
Another common change is modifying the required number of directors for the association. Small communities that have difficulty filling vacancies on their board tend to consider scaling down to only three members if their documents call for five or seven, while large communities with active and involved owners often wish to expand the size of their board to allow for greater participation.
Governing document provisions pertaining to annual meeting dates may also require updating. Many documents specify a specific day, e.g., the second Saturday in January, for the community’s annual meeting. Associations may wish to update their meeting date to provide greater scheduling flexibility, or to better align with their fiscal year or when the most owners are in town. An amendment to enable the board to select a new meeting date can offer a permanent solution.
Some associations may wish to change the start and end dates of their fiscal year for accounting purposes, and that would be another simple fix they could implement. Other common changes include those addressing parking, short-term rentals, and amenity use rights.
Conclusion
With the help of highly qualified and experienced legal counsel, associations can overcome both owner apathy and potential opposition to pass an amendment to simplify their amendments process. As Lindsey noted, attorneys can guide associations through a process that combines online voting, the effective use of proxies, and a canvassing/meeting/voting window that can last up to 120 days.
Our firm highly encourages communities that have been struggling to comply with outdated provisions in their recorded governing documents to fix this issue once and for all. By focusing on an amendment that will effectively make future amendments possible to achieve, associations will be able to do away with outdated provisions and enact changes that reflect the community as it is today. Our South Florida community association attorneys write about important matters for associations in this blog and in our Miami Herald column, which appears every two weeks on Sundays, and we encourage association directors, members and property managers to click here and subscribe to our newsletter to receive our future articles.