Byline: Jordan I. Shifrin
Association governance is paper-driven. Stacks and stacks of dictums, rules, covenants, laws, motions; it seems endless Reading all of this is one thing, keeping them current is a challenge.
The biggest hurdle for a board in utilizing the association documentation on an ongoing basis is how to make them relevant and keep them up to date.
The second biggest challenge is keeping the owners aware of their responsibilities by keeping them informed of any changes. Occasionally, unanimous consent is required such as when changing the percentages of ownership. A board of directors that is not pro- active and chooses to operate with stale documents is only looking for problems when it comes time for enforcement.
Each type of document has different requirements and should be reviewed in different contexts.
Declaration of condominium or declaration of covenants:
The declaration is the document which sets forth the "rules of property" pertaining to the guidelines for aesthetics, architectural control and maintenance of the property. Each owner is subject to these restrictions as well as all applicable law.
Changes or amendments can be relatively simple as the procedure for amendment is generally spelled out in the document itself. A majority of owners and sometimes a super majority ( 2/3or 3/4 percent) of the owners is required to consent to making these changes. Sometimes the mortgage holders, the developer or even the village are entitled to notice or have veto rights.
However, practicality dictates that amendments become necessary when the members of the community want to change a substantive policy such as eliminating rentals or permitting dogs.
When a declaration starts to approach 10 to 15 years of age, it becomes painfully clear that because of multiple changes in the law and even social changes, a revamp is required. Whether it is an updated version incorporating all of the new laws, streamlining it to eliminate developer references and archaic language or just a rewrite to make it more reader friendly, the legal fees and costs will pay for themselves over time by having a readable document that does not always require a lawyer's opinion to interpret every paragraph.
Whether it is an amendment or an amended and restated declaration, it must be recorded in the county where the property is located before it can be valid. A declaration is a "covenant running with the land" and is linked to each residence or lot. …