Adopting Amendments to Governing Documents

It sounds easy. Your homeowners’ association or condominium association wants to change something in the Declaration that governs your community, you hold a vote, and presto-change-o it’s done!

Unfortunately, that’s not exactly how it normally happens.

Let’s rewind the film for a moment and talk about both legal and practical steps to help successfully accomplish an amendment to the governing documents for your community.

First, check the document you want to change. What are the amendment requirements? Break those requirements down into specific steps and start to think about how long it is will reasonably take to accomplish that step.

Second, make sure that you next check your by-laws to make sure you have a strong handle on the requirements for notices, calling meetings, quorum requirements, proxies, and more. These requirements matter, as a current case that is on appeal to the Georgia Court of Appeals shows. (The arguments turn on the content of the ballots and the decision will determine if the amendment stands.)

This step raises a lot of administrative questions. For example, do you have a handle on who is currently eligible to vote on association matters? Do your documents automatically suspend member votes due to non-payment or do you have to take steps to suspend them? Does the amendment language deal with “total association vote” or “members present at the meeting” or “members eligible to vote”?

I’m sure you have noticed by now, we have not even gotten to the substance of the amendment! That’s next on the list of things to consider before you even start to set up your vote.

What are you trying to change? Why are you making the change and what benefit does it give to the neighborhood? Is the effort to change worth the realistic, anticipated benefit? Do you know exactly how you want it worded?

Third, this is also the time to contact an attorney to help with drafting the amendment. I realize that you may read this as a shameless plug, but all too often I have had to try to fix something about an amendment that was not properly adopted, included language that had a different legal effect than was intended, or just was not worded in a way that had the intended effect. Those fixes can be far more expensive, if they can be accomplished at all, than hiring an attorney at the front end of the process.

Some of the value of the attorney writing the amendment is based on their experience with this type of situation, not just the law. It is important to know if the law draws boundaries that prevent what the association wants to do or affects the way it does it. (The case of Walker v. Charter Club on the River, as discussed on this blog in the past here and here, is an example. Only a handful of people, mostly attorneys that deal with community association issues, are aware of this case and the effect that it has on amendments that may be adopted by homeowners associations in Georgia.)

If an attorney is just writing up the amendment, they can probably give you a flat fee quote for the work which will help you budget for the expense.

Fourth, start to communicate the desired change to the neighborhood. Depending upon the nature of the amendment, I often advise clients to form an amendment advisory committee to help with this aspect of the amendment. This group of members will both gather information on what the neighborhood actually wants and distribute information on the desired change. At this point, it can be helpful to make use of newsletters, websites, message boards, surveys, and “town hall meetings” to spread the word about the desired amendment and to make sure that enough people are invested in the change for it to will pass!

This process can also help identify people who really do not want the amendment to pass. Listen to them and find out why they do not want it. In some cases, their concerns can actually be addressed in the way the amendment is drafted.

This part of the process also has the potential to save effort and time, by giving the board of the association insight into what people really want. In associations, apathy is often supreme. Sometimes it causes a breakdown in communication between board members and the rest of the association membership. Board members see the problems in the community from a very different perspective and they also see the solutions differently. For an amendment to pass, the board and the rest of the membership need to be on the same page about what needs to happen.

Once you know exactly what you want the amendment to say and you have a handle on the process to adopt it, draw up a plan and timeline for adopting the amendment. Do not just wing it and react as you go! Plot it out on a calendar and add in the tasks that go with each milestone.

By: Amy H. Bray, a partner in our Commercial Real Estate Department