HOA-Docs-420-x-290-3.jpg From time to time, the bylaws of your condominium or homeowners association may need updating. This will definitely happen when transitioning from developer control over to the HOA or condo board, but could happen at any time when a refresh to the governing documents is needed to improve the community. These changes are called “amending and restating” the governing documents legally, and demands a majority of homeowner approval in the state of Georgia.

The entire process can be time consuming, and it’s essential to make all changes in the correct manner as well as in legal order. This article will explain how to update your association’s bylaws, as well as the legal and real-life logistics needed to do this.

1.    Be aware of any applicable laws

To begin, you’ll need to make sure any alterations you want to make are actually governed by the governing documents and not any other documents. Each association is governed by a hierarchy of authority. At the top are federal, state, and local laws. The hierarchy then trickles down through the recorded plat; the declaration of covenants, conditions and restrictions (CC&R); the articles of incorporation; and then to the community bylaws.

For example, the CC&R lays out the guidelines ruling the day-to-day operation of the association. Fencing, pet regulations, and rules concerning short-term rentals all fall under the jurisdiction of the CC&Rs.

On the other hand, it’s the bylaws that determine how the HOA operates on an organizational level, such as any voting regulations and board meeting frequency. Try to determine specifically what you’d like to update. This will guide you toward the correct documents to refresh. Additionally, a familiarity with state and federal laws can inform what is applicable to adjust at the board level, and what may require more bigger changes.

It may also help to discern the type of changes you want to make before beginning the process. Are you seeking to alter only a few provisions? Or will the changes necessitate an overhaul of the governing documents? Deciding ahead of time the scope of the process will determine how many resources to dedicate to it.

2.    Form a committee

The community’s bylaws fall under the provision of the association board of directors. “Rather than taking up valuable meeting time and the collective attention of all members of the board, the most effective way to update the bylaws is to create a committee specific to this purpose,” says Reid Schermer, vice president at FirstService Residential.” Make sure to set an aggressive timeline for the committee. Ask it to meet often and return with its proposals in a month, to help keep the process on track.”

The committee will choose roles, such as a chairperson and secretary, in addition to assigning the work evenly to its members. For example, it can assign sections of the bylaws section by section for individuals to work on before returning to the committee to compile the changes.

Once the committee makes its proposals, they should return them to the board.

3.    Involve the attorney

It’s wise to run any proposed alterations by the association’s counsel. They will have insight into applicable ordinances, both state and federal, that may override any suggested changes to the bylaws. Making sure to incorporate the attorney throughout the process can prevent legal headaches in the future, as well as avoid wasting time and sweat by having to redo changes to fall in line with legal codes.

You may consider having your attorney attend a committee or board meeting to answer questions and outline legal guidance for any general areas that the board is looking to update within the documents.

4.    Gather feedback from owners

Not only is giving community members plenty of time to review any proposed changes good policy, it’s also required. Georgia statutes mandate that the corporation must give written notice to all members stating that the board is considering proposed amendments. This warning must include a copy or summary of the amendment.

Additionally, your current governing documents may include provisions with requirements for how to give members notice, such as a number of days ahead of time, or regulations about how to contact them. It’s important to give members fair notice to attend and provide their input. Members will often have questions or new viewpoints that the board has not yet considered, and those should be taken into account. Involve the attorney in the process of determining the notice requirements and proper procedure.

Any input raised in the feedback stage may be rolled into the proposed update. This will likely mean another round and draft to come from the committee and then back to the board for approval. “It’s important to have the full community on board with changes, so including input and communicating ahead of time will always benefit the process,” adds Schermer.

5.    Take a vote

Once the proposal includes member feedback and lawyer attorney’s approval, you’re ready to put the amendments before owners within the community. Georgia law states that the board must recommend the changes, unless there’s a conflict of interest, in which case it must make no recommendation.

According to Georgia statutes, HOA membership must approve any amendments by two-thirds of the votes cast or a majority of the voting power, whichever is less. Each parcel gets one vote. This means that if every property owner votes, a simple majority is needed to pass the revisions. If a simple majority of possible votes isn’t met, it can still pass by receiving approval from two-thirds of those who did vote.

Your articles or bylaws may require any amendments to be approved in writing by people other than the board. This will be clearly outlined in the current bylaws. Be sure to check them and get any necessary approval from these people.

6.    Adopt the changes

Congratulations! You’re almost there, assuming the vote passed. Now all that’s left is adopting and enacting the changes. Your governing documents will lay out how to officially adopt changes to the documents.

Your lawyer should provide a final legal review of all applicable work and file the amended documents as required. In Georgia, copies of the articles of incorporation and bylaws must be kept at the registered office of the association as well as at the sales office of the declarant. Copies must be furnished to any unit owner upon request.

Clearly communicating the changes with all association members makes for sound practice, and will help smooth over the transition as changes are enacted.  

Once the amendments have been filed and communicated to members, the ad hoc committee overseeing the document changes can be disbanded.

The entire process of refreshing governing documents can be stressful and lengthy. But it’s worth the extra effort to make sure changes work for everyone involved in the community, that they follow legal codes, and that they are communicated clearly. Hopefully, any updates to how the association runs will improve the entire community for all your homeowners.


Monday October 26, 2020