Now and then, a homeowners association will want or need to amend bylaws and covenants. Board members act as the leaders of the association. However, they don’t possess absolute power that would allow them to change the bylaws and covenants without going through the proper channels and procedures. Improperly enacted amendments are usually unenforceable.
Want to Amend Bylaws and Covenants? Understand Them First
Every homeowners association maintains a set of governing documents that dictate the operation and management of the community as well as the responsibilities and obligations of the HOA and homeowners. Two of the most important documents are the bylaws and the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), otherwise known as the covenants.
An HOA’s bylaws dictate how the association operates. The bylaws consist of the requirements and procedures for running the association. It typically includes directions for board elections, how and when meetings should be held, and voting rights, among other things.
In contrast, the CC&Rs or covenants dictate the rules of the association. They consist of property use limitations, homeowner obligations, and more. One of the most common provisions within the CC&Rs is the obligation of members to pay dues. The objective of the CC&Rs is to preserve and improve the property values in the neighborhood.
Over time, some provisions in the bylaws and CC&Rs may become outdated. State laws may change, making them inconsistent with current bylaws and covenants. Sometimes, an association simply wants to change the provisions. However, making an amendment is not as easy as erasing a line and replacing it with a new one.
How to Change Homeowners Association Bylaws
Homeowners associations wishing to amend their bylaws have two considerations: state laws and the HOA. Some states may have existing laws that apply to associations concerning amendments to the bylaws. More often than not, though, state law dictates that the method to change the bylaws should be contained within them.
This brings us to the second consideration. You will generally find the rules for changing bylaws outlined in the same place — the bylaws. Because bylaws can vary from one association to another, the requirements for amendments are not always the same. Typically, though, an HOA will need to secure the membership vote.
If the bylaws are silent, an association may be able to turn to the state’s corporation law. For instance, in California, Corporations Code Section 7150 can provide guidance.
How to Amend HOA Covenants
As with bylaws, an association may amend its covenants according to state law and the provisions within the CC&Rs. The CC&Rs should set forth the requirements and procedures for amending HOA covenants. Typically, amending the CC&Rs would require at least 67 percent of votes from the membership. Again, state laws can differ on this issue, so it is best to check yours before proceeding.
Amending HOA Bylaws and Covenants: Step-by-Step Process
If your HOA board wants to change the bylaws or covenants, it is best to adopt a formal process. This will standardize the amendment procedure and avoid improperly enacted changes.
Here is how to amend association bylaws and covenants.
1. Propose the Amendment
If you want to amend bylaws, the first step is to propose the amendment. The proposal should clearly describe the amendments to the covenant or bylaw.
2. Meet to Discuss the Amendment
After making or receiving the proposal, the HOA board will meet to discuss the amendment. This board meeting should be open to all homeowners so they can provide their input. Changing HOA bylaws and covenants may need a special meeting if there is no regularly scheduled board meeting coming up.
3. Take a Vote
After the discussion and review, the association will vote to pass or reject the amendment. Depending on state laws and the governing documents, this will likely require a vote from the entire membership. Keep in mind that some states have specific requirements when taking a vote to amend bylaws and CC&Rs. For example, California law requires the use of secret ballots.
4. Count the Votes
After taking a vote, the board must count the votes at an open meeting. This way, homeowners can attend the meeting and witness the counting. Transparency is important when amending bylaws and covenants as it establishes trust between the board and the homeowners.
5. Approve or Reject the Amendment
The vote tally should reveal whether or not the membership has approved the amendment. Again, associations may have differing requirements to approve an amendment. Make sure to review your state laws and governing documents.
6. Record the Change
For changes to the CC&Rs, an association will likely need to record the amendment with the county recorder’s office. Bylaws usually don’t require recording. For both types of amendments, though, it is important to give notice of the change to the membership.
Can HOA Change Rules Without a Vote?
Most state laws and governing documents require a vote to amend the bylaws and covenants of an association. However, for changes to the operating rules, the HOA board does not typically need to secure a vote from the membership. Enacting or changing a rule usually only requires a vote of approval from the board itself. Though, it is still worth checking the governing documents to see if rule changes also have special requirements.
Can HOA Change Rules Without Notice?
Changing the bylaws or covenants usually requires a vote from the membership. As such, the board should provide proper notice of the change and the board meeting where the discussion/voting will occur. Bear in mind that notice requirements can vary as well.
On the other hand, changes to the operating rules usually don’t require a vote from the membership. That said, the HOA board should still give proper notice of the board meeting where the board will discuss and vote on the rule change. Additionally, if the rule change passes, the board should notify homeowners of the change.
Enact Amendments the Proper Way
As you can see, there is a right way to amend bylaws and covenants. Failing to abide by the correct procedure as per state laws and your governing documents will render any amendments null and void. Worse yet, the HOA and its board may be in legal trouble. When in doubt, hiring a lawyer is always a good idea. After all, an association will likely need a lawyer to draft the amendment anyway.
Cedar Management Group provides exceptional HOA management services to community associations. We also offer legal assistance. Call us today at (877) 252-3327 or contact us online to request a proposal!
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