Two men discuss governing documentsYour governing documents are a critical component of your homeowner association (HOA) or condominium community and may need to be updated periodically. For example, document updates are required when transitioning from developer control to HOA or homeowner board control. Or in other instances, the association may need to update the documents to make community improvements or if the language is no longer consistent with current state or federal laws. Amending your governing documents can be time-consuming, but taking the time to review them for potential revisions is essential.

Follow these 6 steps to amend your community’s governing documents correctly.

Step 1.    Check current applicable laws

The first step is to review your governing documents and consult with your association’s legal counsel before making any changes to ensure the law allows those changes. Are you seeking to alter only a few provisions? Or will the changes require a complete overhaul of the governing documents?  In Georgia, associations are impacted by several federal laws and other state statutes depending, in part, on how the association is structured. Any changes you make should comply with these laws. These include but aren’t limited to, the Georgia Property Owner’s Association Act, the Georgia Condominium Association Act, statutes on cooperatives, the Georgia Nonprofit Corporation Code, the Fair Housing Act, Fair Debt Collection Practices Act (FDCPA) and the American With Disabilities Act.

Your association’s declaration of covenants, conditions and restrictions (CC&R), dictate what a homeowner can or cannot do to their property. Pet restrictions, short-term rentals, and fencing, for example, all fall under the jurisdiction of the CC&Rs. On the other hand, the bylaws establish and outline how the association operates. The bylaws include board member duties and responsibilities, annual meeting and quorum requirements, membership and voting rights, and the election process. Knowing the applicable laws and rules will help you better determine what can be changed at the board level.

Step 2.    Form a committee

The association's board of directors governs the community's bylaws, and like most boards, they are likely already busy managing multiple time-consuming projects. Even if your board is high functioning, they may need additional help. Instead of consuming more of their valuable meeting time, your board should create an ad hoc committee. An ad hoc committee is a short-term, temporary committee formed to address specific community and resident issues. With the help of an appointed chairperson, the committee can facilitate the governing document updates. It is important for the committee to establish a timeline, meet regularly, and discuss suggested revisions. Next, the committee should present change recommendations to the board for approval. This will simplify and help expedite the entire process.

Creating a committee takes time and effort, but you don't have to do it alone. A good property management company will offer support to help your board succeed by providing understanding and a comprehensive perspective of the committee creation process.

How well is your board functioning? Watch: The Making of a High-Performance Board and find out.

Step 3.    Involve your association attorney

Before making document changes, you should consult with your association’s attorney. They will understand applicable laws in your state that may affect the proposed amendments, helping you to avoid potential legal headaches.

"Your association’s attorney is there to guide you in the right direction," said Mara Jockers, vice president and general counsel at FirstService Residential. "The last thing your board wants is to have to go back and make additional changes after members have voted.”

Consider asking the attorney to attend a committee or board meeting to answer any questions and outline proper guidance for the planned changes.

Step 4.    Get feedback from community members

Providing ample time for community members to review any proposed changes is not only good policy, it’s also a necessity. Check your governing documents to see if any special notice requirements apply, such as how long members must have to review changes. Typically, the association mails or emails the proposed changes to members and then schedules a meeting to gather feedback. It's critical to hear from the association to find out if any concerns or questions still need to be addressed by the board and committee.

"Changes require community support," said Danny Ellis, president at FirstService Residential and based in Atlanta. "So, engaging the community in the decision-making process helps ensure that residents have a voice which builds trust within the association.

Feedback should be incorporated into the proposed changes if warranted. However, the committee may have to meet again before presenting a final version to the board. Involving the community in the process is necessary to get their support for any proposed changes, even if it creates an extra step.

Need help engaging your community? Read: Connecting with Your Community: Communication Best Practices   

Step 5.  Hold a vote

After feedback has been incorporated into the documents and your association attorney has signed off on them, you can put the amendment up for a vote. The threshold needed for enacting the change will depend on your state's laws and your association's governing documents. In Georgia, association members must approve any amendments by two-thirds of the votes cast or a majority of the voting power, whichever is less.

Step 6.    Adopt and register the changes

Once the amendment has been voted on and passed, all that remains is to implement the changes. Your governing documents will outline how the changes should be officially adopted. Adopting them at a meeting or obtaining written consent may be necessary. Either way, a notice of the amendments should be provided to your residents. Your association attorney should also conduct a final legal review to double check all documents and file and record them where required.    

The process of updating your association’s governing documents can be stressful and takes a fair amount of time. However, it’s worth it to plan and take the time needed to ensure the changes your community needs are within the law and work to improve the lives of your residents. For more information on how to amend your association’s governing documents, contact FirstService Residential.

Monday March 13, 2023