Amending Your Governing Documents – Part 1: When to Amend?

Part 1: When to Amend?

Our firm recently presented a webinar for our clients to discuss the topic of amending their governing documents. We received so many positive comments after the webinar that we decided it would be appropriate to share the general topics of discussion with other communities.

First, for the purpose of this article, the term “governing documents” refers primarily to a Declaration of Condominium or Declaration of Covenants and Restrictions (or in the case of a cooperative association, the Master Propriety Lease) as well as the Bylaws and the Articles of Incorporation for the corporate entity that is the association. However, it is also important for associations to regularly review and revise the rules, regulations, architectural standards, policies, etc. that govern the community.

There are numerous reasons that associations should consider amending their governing documents. Typically, the most important reason for amendment is to ensure that the documents are consistent with the current laws of the State of Florida. For example, bylaws often contain notice and election procedures that are inconsistent with applicable statutes. Insurance provisions in condominium declarations are also often outdated and inconsistent with Section 718.111(11) of the Condominium Act. Another reason to amend the governing documents is to remove unnecessary, obsolete and often unhelpful developer provisions. Remember, developers draft the governing documents in a manner that will help sell homes, not typically for efficient and appropriate future governance of the community. Furthermore, even if the documents were originally drafted well, communities change over time and provisions such as architectural restrictions need to be updated to reflect the current trends in the industry. Common practices also change over time. A great example of this relates to parking provisions and restrictions that prohibit pickup trucks in a community. Many communities have updated and modified parking policies to remove outdated truck restrictions from their documents in light of the availability of very nice personal use trucks on the consumer market.

Check back for part 2 – specific document provisions that are often ripe for amendment and suggestions regarding the amendment process.