Do we need another lawyer to update documents.

Your current HOA lawyer is not well versed in condo law, Bonnie?? What kind of law does s/he practice? What services are provided by your current HOA attorney?

Is your current firm on retainer with you, or do you just phone or email them when you need an opinion?

It might be worth it, Bonnie, to interview 2-3 actual HOA attorneys to see what they'd charge to rewrite your documents. it should be an entirely separate function from your other needed legal work. How long are your CC&Rs? Your bylaws? And, unlike CA, maybe NE law isn't so complicated, so perhaps it wouldn't cost a whole lot.

Although I agree that at times it's best to hire attorneys versed in specific fields for specific purposes,
I disagree that the attorney should actually rewrite any Associations governing documents.

Instead, I believe that it best to:

1) Form a committee to review existing documents with current laws, with documents from similar Associations within the same county and propose a draft rewrite to the Board. The committee should be made up of non-board members.

2) The Board should review the rewrite to existing laws, the current documents and make necessary changes in a revised draft.

3) The revised draft should be published to the membership and a meeting held to discuss the changes along with hearing feedback on possible changes. Those who can not attend the meeting can provide possible changes directly to the Board.

4) The Board then reviews the revised draft and makes changes based on the feedback received into a draft proposal

5) The Board then sends the draft proposal to the attorney for review, comments and suggestions.

6) The Board reviews the attorney's comments and makes changes to the draft proposal as they see necessary. Once those changes are made, the document is now considered a proposal.

7) The Board then makes the decision to go for the whole ball of wax or to vote on each proposed change individually.

9) The proposal is published to the membership along with a meeting notice and, if allowed, proxy forms (I prefer directed proxies). The proposal should include a letter from the Board explaining the process that was gone through and encourage participation.

10) Prior to the meeting, the Board actively goes after proxies

11) Meeting is held, vote is taken.

This process, in my opinion, allows for the greater chance of success. This is because members of the Association were included in making the changes. The last time we did this, it took over a year from requesting volunteers for the committee to final vote.

Alternatively, the Board could write the initial draft and give it to a committee for review.

Tim's suggestion sounds good to me too. I will seriously consider it.

Although not impossible in our senior community, it may be a little difficult to get active participation for the committee. But it sounds like the best way to handle this major undertaking.

Thanks

Bonnie

Amending your Covenants is one issue. Simply having an attorney update them (as in remove old information) is another issue.

As an example our docs refer to the Declarant, etc. but as our association has been turned over to we owners, none of the Declarant stuff is applicable. One just has to "read" through it. Ours could use an update but as of now it is not high on our list.

Hope this helps.

Thanks John

I did mention in a Board meeting that according to the way I understand the law, we don't have a declarant and a Board Member got upset. So I just dropped the issue for the time being until we hear from our lawyer.

BonnieG,

1. To comment on your subject line question re a lawyer to update documents.

If it were my Condo Association I would look for an Attorney, Law Office, that specializes in Condominium Law, even if you have to look in another city an hour or two away, because I suspect that you will want to Restate (completely rewrite) your Declaration and ByLaws to meet the requirements of the current Nebraska Condominium Act.

I would try to locate an Attorney who has already Restated Documents for a number of other Condominium Associations, because then they will probably have a template of sorts already written, which they can adapt for your Association.

I am not an Attorney, nor do I work in the legal profession or related, but I think an Attorney specializing in Condominium Law might discourage any attempt to revise, as being more costly and difficult to do, vs, to completely restate, re-write. But not necessarily “a good thing”, because from your standpoint it is going to be much harder to figure out (and much harder to explain to your Owners) exactly what has been added, revised, amended, and or changed.

2. As you know, but others reading may not, January 1, 1984 is an important date, along with the words “before”, “created before” and “after” as used in the “applicability section” of the Nebraska Act.
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For reference, copied from: http://www.ncsl.org/documents/environ/NEcondo.pdf

76-826. Sections, applicability.

(a) The Nebraska Condominium Act shall apply to all condominiums created within this state after January 1, 1984. Sections 76-827, 76-829 to 76-831, 76-840, 76-841, 76-869, 76-874, 76-876, 76-884, and 76-891.01, and subdivisions (a)(1) to (a)(6) and (a)(11) to (a)(16) of section 76-860, to the extent necessary in construing any of those sections, apply to all condominiums created in this state before January 1, 1984; but those sections apply only with respect to events and circumstances occurring after January 1, 1984, and do not invalidate existing provisions of the master deed, bylaws, or plans of those condominiums.

(b) The provisions of sections 76-801 to 76-824 do not apply to condominiums created after January 1, 1984, and do not invalidate any amendment to the master deed, bylaws, and plans of any condominium created before January 1, 1984, if the amendment would be permitted by the Nebraska Condominium Act. The amendment must be adopted in conformity with the procedures and requirements specified by those instruments and by sections 76-801 to 76-824. If the amendment grants to any person any rights, powers, or privileges permitted by the Nebraska Condominium Act, all correlative obligations, liabilities, and restrictions in the act also apply to that person.
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3. If you go the route of using a Condo Law Attorney, IMO, the initial draft of the Restated Declaration and Bylaws should be written by that Attorney – and then, after you have the initial “draft” in hand, as TimB4 suggests, form a committee to review, etc., etc.

Also, just because “it is what the Attorney wrote”, that does not mean that you have to agree with everything written as a “first” draft – and you probably will not. So be prepared for a lot of back and forth.

4. You wrote “I hope to have a member vote at the annual meeting to place ourselves under the law for associations established after January 1, 1984.”

Is it correct to assume you want to ask your members (advisory vote only) “shall we amend, restate, our Documents to incorporate the provisions of the Act, which currently do not apply to us, Condominiums created before January 1, 1984, so as to have them apply to us?”

And will you have a list of ten (10) reasons why it would be an advantage to do so. And maybe, or maybe not, talk approximate cost to amend. And/or have the Attorney present at the meeting, possibly at no cost to the Association, to “sell” the reason(s) for new Documents.

Basically yes that is what I am saying. I did not want to start an argument at the meeting. I have stated my opinion on other items before and the Board didn't listen to me. But when our lawyer/owner said the same thing the Board listened to her.

It frustrates me that some of our Board members either aren't reading our documents and have very little understanding of the law and our documents. I know I don't completely understand the documents but I have read and studied them.

The Board member who got upset about the declarant previously had asked me what the state law has do to with anything. She did ask this before she was a Board member. I think she has a slightly better understanding of state law and our documents.

She also thought that although we own our units the church organization may still own the common elements in the building. She got on the Board. We hired and attorney and one of the items the Board wanted him to check on was "Do we or the church organization own the common areas" I was just one vote on the Board so my opinion had very little weight. Fortunately we have not given the lawyer specific direction to check on this. In my opinion it would be a waste of money for a lawyer to check this for us.

I don't know if we have these types of problems because we are a senior community or if other associations have similar problems.

Maybe I'm missing something, Bonnie. But are you saying you/your board doesn't know WHO owns your common elements/areas?? Whether it's your HOA or the church? If the church, aren't they paying property taxes on those common area?? Or, if not, who is?

But hasn't the declarant been out of the picture for a very long time--years? And if so, why would anyone say anything "negative" about the (ex??) declarant?

The "declarant" has not been out of the picture for a very long time. We had a contract with the church organization for housekeeping and maintenance until January 1, 2014. The Care Center adjacent to us and connected to us by a tunnel is owned by the church organization. In fact when I first moved here, I was unfamiliar with what a condominium actually was and thought the church organization that owned the Care Center adjacent to us also owned this building.

Owning a condo involves community living. A person owns one (or more units) in a condominium building or I understand some condominiums can actually be individual houses. But I live in a three story building with 43 units.

The common areas are owned by all owners. A percentage is allocated to each unit determined by the square feet of the unit. Each unit owner's vote is determined by the percentage allocated to his or her unit. Mine is 1.997% But all owners have an undivided interest in the common areas.

A condominium building is built by someone or some organization referred to as the "declarant" and initially governed by the declarant. Once a certain percentage of units (determined by the documents) have been sold and a full Board of (in our case) owners have been seated that the "declarant" releases the governing to the association.
In our case this didn't happen. The first lawyer that we had said the church organization had a sweetheart deal.

I don't go into such detail when trying to explain a condominium to our older owners.

Our documents state that the management can not be taken from the church organization without 100% agreement of the owners. Long story but we "broke away" with a 14-16 vote but still signed a management contract with the church organization. This happened a couple of years after I moved here before I was on the Board.

Basically we severed the relationship with the church organization in 2010 and became self managed. Self management was a nightmare. I know now but did not know at the time the vote was taken that the documents said we needed 100% agreement to cut ties with the church organization as our management company. The President of the Board at the time said that we had, then resigned. The new President signed a housekeeping, maintenance contract that also indicating it was a managing contract. The church organization never contested anything and it was the church organization that cancelled the contract with us effective January 1, 2014.

If I understand the law correctly (which I admit I may not) since the church organization hasn't contested us "breaking away" (estoppel) from them and were the ones that actually cancelled the only contract we had with them, the church organization now has no voice in any of our business.

That being said, since the church organization owns the Care Center adjacent to us, we want to be good neighbors and work together on certain items such as parking.

It is the owners have been here since before I moved here than have the idea the church "took care of us". I don't believe new owners have that idea.

Our documents are over 30 years old and in my opinion (with or without reference to a declarant) need to be updated.

I don't have time today to find the exact passage about only the "declarant" can be our management company. But I do need to study the documents before our annual meeting in February. I do remember seeing the passage when reviewing our documents with our lawyer/owner.

Our current mgmt. company did not say anything about that passage.

I don't think we are allowed to name specific companies on this forum. What I can say is the company was started in 2011 by a young man who previously had worked for a management company and appears to still be on good terms with the company he worked for. I am very pleased with our PM.

We had our property surveyed in 2014 so we have a map of our parking spots. At this time we are using the parking on a first come first serve basis. I would like to continue using the parking this way. The parking in the lot has always been difficult during the day and got more so when the Care Center started a major remodeling undertaking. Dumpsters took many parking spaces. There is so much detail I could go into, but prefer not to at this time.

Based on the written information in the survey we own 11 spots on the South West side of the lot. As mentioned previously we share all spots. Some of our vehicles park in the Care Center's lots and many of the employees of the Care Center park in our lots. It is currently a first come first serve basis. We have talked about posting signs on our lots indicating Condominium parking only. But have done nothing about this so far.

That being said, I currently am parking outside and one snowy icy day I had to get to my car. There is a slight incline to get to the cars that are parked on the for West side of the lot. It was quite difficult for me at 67 year old with arthritis all through my body to get to my car.

Thus I prefer first come first serve, but we will work with the Care Center on this.

If I don't get a good spot when I come home, I can usually go our later in the evening and move my car to a better spot.