To review Part 1 of this article, click here: https://rpglaw.com/news/amending-your-governing-documents-part-1-when-to-amend/
Part 2: Specific Amendment Provisions / General Tips & Suggestions
When reviewing your governing documents to determine if amendments may be appropriate, the Board should consider the following provisions and related questions:
- Transfer, Lease and Occupancy Provisions. Does your association have sufficient control to protect the residents in your community?
- Maintenance Provisions. Are the maintenance provisions in the governing documents clear enough to easily understand and to avoid potential conflict with owners regarding who is responsible maintaining certain improvements, especially with regard to windows, doors, utility lines, etc.?
- Insurance Provisions. Are the insurance provisions consistent with Florida law and sufficient to protect your community?
- Assessment Provisions. Are the assessment provisions consistent with Florida law and sufficient to protect the financial health of the community?
- Parking Restrictions. Are there any parking concerns in the community that may be addressed by amendment?
- Use Restrictions. Do the current use restrictions cover current issues facing communities, such as the use of drones, display of political flags, harassment of association agents, support animals, etc.?
- Emergency Powers. Does the Board have sufficient authority to adopt necessary rules and policies in the event of an emergency situation such as a hurricane or the current COVID-19 pandemic?
- Electronic Documents and Voting. Is the Association in a position to take advantage of advancements in technology?
- Election Procedures. Are the Board election procedures consistent with Florida law and appropriate for your community?
Once the Board has identified potential sections of the governing documents for amendment, we recommend that you contact your legal counsel to discuss the next steps in the process as each attorney may approach the process differently. Some of the things you will want to discuss with your counsel are whether or not the amendments should be drafted and voted on individually, or if it is more appropriate to fully amend and restate the governing documents as part of a larger project.
If you are considering several changes, amended and restated documents can be very helpful as the final product results in clear, easy to read and understand documents, as opposed to numerous individually recorded amendments. Another important question for discussion is how your counsel prefers to approach the drafting process. We have often been asked by our clients to review and edit amendments that have already been drafted by a well-intentioned committee. In our experience, this process often requires more time (and consequentially, higher legal fees) than simply allowing us to draft recommended amendments based on the problem areas identified by the Board.
Reviewing the governing documents of your community for potential amendments is an important task that should be performed by the Board of Directors every few years. Each community is different and your documents should reflect the collective needs and desires of your residents, and should further assist the Board with efficient and effective governance. In short, good documents make happy neighbors!
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