amending our documents

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Instead of adding to Marks post about hiring a marketing company I will start a new thread.
We are in the beginning stages of updating our over 30 year old documents. The Board last evening agreed to let me send proposed amendments that I had prepared to our lawyer for review and wording for our ballots.

One of the members (not Board Member) present was very concerned that we wanted to "change things".
Even one of the Board members suggested we just let our lawyer read our documents (which he has already done) and tell us the changes we need to make.

I reminded the Board that our lawyer advised us to read the documents to decide what we want to amend and then send these proposed amendments to him for review for legality and for him to prepare the wording for the ballots.

This is more of a vent that a question. Oh the fun of being a President of a senior community where many people are afraid of change of any kind. Do Associations of younger people have this problem with people being terrified of change?

Actually it appears that there is only one other Board member that actually reviewed what I emailed to all Board Members and put her two cents worth in. I am so glad this person is on the Board. Actually I would have preferred she be President but she didn't want to and all the other Board Members were new (within a year) to the community.

TimB4 (Tennessee)
Posts: 21,059

Posted:

I would have send the draft for comments from the membership and then adjusted the proposed amendment based on those comments prior to sending it to the attorney for review. This way the membership is more involved in the changes and you only spend money on the attorney once.

KerryL1 (California)
Posts: 14,550

Posted:

Tim's idea makes sense, Bonnie. Oh, but what if the Owners make whaco suggestions that will take a lot of your attorney's time, which'll cost you more. Hmmm, now I'm ambivalent about this.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By KerryL1 on 04/24/2015 2:32 PM
Tim's idea makes sense, Bonnie. Oh, but what if the Owners make whaco suggestions that will take a lot of your attorney's time, which'll cost you more. Hmmm, now I'm ambivalent about this.

I see your point. I have spent hours and hours studying the newer NE Condominium Laws (For Associations established after January 1, 1984). I have also spend hours studying our documents. Most of our older owners will not even read our documents. There has been more than once when someone made a suggestion and I had to tell them we could not implement the suggestion they gave.

CyrstalB (Maryland)
Posts: 457

Posted:

We went through this process several years ago. I understand why you would want to take the proposed changes to an attorney, however it may be a waste of your time and money.

I would ask yourself what are the chances of any amendment changes? From what you are posting, do you think you will get the % necessary to make the changes? It doens't sound like it, from what you posted.

IF it's not to late, stop the attorney at this point, and tell them the truth, you don't want to spend the HOA money if it doesn't have a chance to pass. If they argue that point, please remember that they say what is necessary to make themselves relevant, aka, upselling. But that word is never associated with lawyers.

Tim is correct, get the membership involved with most if not all decisions the board may have to make, by getting feedback. And please give yourself some credit to be able to differentiate between a crazy suggestion and one that has possible merit or potential.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By CyrstalB on 04/25/2015 3:12 AM
We went through this process several years ago. I understand why you would want to take the proposed changes to an attorney, however it may be a waste of your time and money.

I would ask yourself what are the chances of any amendment changes? From what you are posting, do you think you will get the % necessary to make the changes? It doens't sound like it, from what you posted.

IF it's not to late, stop the attorney at this point, and tell them the truth, you don't want to spend the HOA money if it doesn't have a chance to pass. If they argue that point, please remember that they say what is necessary to make themselves relevant, aka, upselling. But that word is never associated with lawyers.

Tim is correct, get the membership involved with most if not all decisions the board may have to make, by getting feedback. And please give yourself some credit to be able to differentiate between a crazy suggestion and one that has possible merit or potential.

I didn't say that I didn't think there was a change of any amendment passing, I just said some of our older members are terrified of any change. We will take suggestions from any member who wishes to give suggestions, however, the final decision must be the responsibility of the Board. There has been at least one time (that I can remember) when everyone present in person or by proxy voted in favor of something.
We will have the proposed amendments to our membership well in advance of the special meeting.

The member who expressed concern at the Board meeting had been told a few years ago by another owner his car would be towed from his parking space if he did not remove it. That is another topic entirely. I assured him we were not going to play upset the applecart with the assigned garage spaces. Although I did not mention it to him, that is a mess that needs to be untangled sometime in the future. I don't want to even mention it in relation to amending our documents at this time. I have no desire to enter a hornet's nest. In my opinion this is an item that needs a meeting with nothing else on the agenda to vote on.

CfD (Virginia)
Posts: 265

Posted:

Once again, I completely agree with Crystal.

PitA
Posts: 311

Posted:

We are in the beginning stages of updating our over 30 year old documents.

No need to amend merely because of changes to state law.
Said law AUTOMATICALLY supersedes your docs.
Merely attach appropriate addendums referencing said new laws.

? Perhaps many of 'your' members still like the existing Covenant/contract ?

Remember Hippocrates: "First, do no harm."

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By PitA on 04/25/2015 1:34 PM

We are in the beginning stages of updating our over 30 year old documents.

No need to amend merely because of changes to state law.
Said law AUTOMATICALLY supersedes your docs.
Merely attach appropriate addendums referencing said new laws.

? Perhaps many of 'your' members still like the existing Covenant/contract ?

Remember Hippocrates: "First, do no harm."

I wished it worked like that in Nebraska. Any association that was established prior to January 1, 1984 has to go by the older State Statues. There are a few that we are automatically under and of course there is no need to amend the documents for the few we are automatically under.
The older Associations have to vote if they want to abide by the newer State Laws. At first I wanted to have a blanket vote to place ourselves under the newer laws; but our lawyer advised us to vote on many amendments.

It would be so much easier if we could have the newer State laws Automatically supersede our documents. Although it may work that way in your state it is not so simple in NE.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By BonnieG1 on 04/25/2015 7:00 PM

Posted By PitA on 04/25/2015 1:34 PM

We are in the beginning stages of updating our over 30 year old documents.

No need to amend merely because of changes to state law.
Said law AUTOMATICALLY supersedes your docs.
Merely attach appropriate addendums referencing said new laws.

? Perhaps many of 'your' members still like the existing Covenant/contract ?

Remember Hippocrates: "First, do no harm."

I wished it worked like that in Nebraska. Any association that was established prior to January 1, 1984 has to go by the older State Statues. There are a few that we are automatically under and of course there is no need to amend the documents for the few we are automatically under.
The older Associations have to vote if they want to abide by the newer State Laws. At first I wanted to have a blanket vote to place ourselves under the newer laws; but our lawyer advised us to vote on many amendments.

It would be so much easier if we could have the newer State laws Automatically supersede our documents. Although it may work that way in your state it is not so simple in NE.

Are you saying in NE you can choose to stay grandfathered in or you can choose to abide by new laws? Can you give an example of one of them for my understanding please? This is an interesting twist to state laws that I was not aware was possible! Thanks in advance.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Crystal,
That is exactly what I am saying.
Among other items, We are automatically under the definitions listed in the newer state laws:

Currently we have to give notice of an annual meeting no less that 21 days or more than 30 days before the meeting. Under the newer law we have to give notice of a meeting not less than 10 or more than 50 days before the meeting.

The Board currently has sole discretion on the budget and association fees.
Under the newer law the Board has to present the budget to the membership for ratification.

These are just a few of the examples.

We are taking the advice of our lawyer to update our documents by amending many items at one time. The lawyer that is helping us with this has had many years of experience in condominium law.

Our State Statue 726-824.01 list the new State Statues that "shall apply to the extent necessary in construing of such sections which apply to events and circumstances which occur after January 1, 1984 not withstanding any provisions to the contrary in sections 76-801 to 76-824.

If our documents to not conform to any section that is not specifically mentioned in 76-824.01 we are not automatically under that State Statue.

I have spend hours studying our docs and state law and a well qualified lawyer is helping us.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By BonnieG1 on 04/26/2015 6:04 AM
Crystal,
That is exactly what I am saying.
Among other items, We are automatically under the definitions listed in the newer state laws:

Currently we have to give notice of an annual meeting no less that 21 days or more than 30 days before the meeting. Under the newer law we have to give notice of a meeting not less than 10 or more than 50 days before the meeting.

The Board currently has sole discretion on the budget and association fees.
Under the newer law the Board has to present the budget to the membership for ratification.

These are just a few of the examples.

We are taking the advice of our lawyer to update our documents by amending many items at one time. The lawyer that is helping us with this has had many years of experience in condominium law.

Our State Statue 726-824.01 list the new State Statues that "shall apply to the extent necessary in construing of such sections which apply to events and circumstances which occur after January 1, 1984 not withstanding any provisions to the contrary in sections 76-801 to 76-824.

If our documents to not conform to any section that is not specifically mentioned in 76-824.01 we are not automatically under that State Statue.

I have spend hours studying our docs and state law and a well qualified lawyer is helping us.

Wow, thanks for answering, I hope with complete sincerity that you are not disappointed by this attorney, and am glad to hear your doing your research too. I was confident in the lawyers that we hired as a board, until the next one said they were wrong. For me, I found doing that research fascinating, even though I was forced into doing so, much like you perhaps. Thanks again.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By KerryL1 on 04/24/2015 2:32 PM
Tim's idea makes sense, Bonnie. Oh, but what if the Owners make whaco suggestions that will take a lot of your attorney's time, which'll cost you more. Hmmm, now I'm ambivalent about this.

That's why the Board, who should be using common sense, makes changes based on the comments. After those changes are made, then you send them to the attorney.

KerryL1 (California)
Posts: 14,550

Posted:

Makes sense, Tim. Based on what Bonnie's written several times in the past, though, there are some owners in her HOA units who will be very vocally disappointed if their pet addition does not show up when it's time to vote.

I'm thinking it might be better to send owners a little survey covering specific topics that her HOA has some discretion about. In other words, a directed approach instead of a wide open invitation to comment on anything. Remember, it was someone in Bonnie's HOA who thought drug-sniffing dogs in their hallway was a good idea.

CyrstalB (Maryland)
Posts: 457

Posted:

Exactly right Kerry, survey the HOA to see what will fly and what will not. Don't know the % necessary in this HOA, but a survey of what they may want and or not want will tell you if you have a shot at passing any new amendments.

Why pay an attorney to tell you that proposed amendments are legal, only to find out that you don't have the votes to pass it?

Why are board members so scared to poll or survey or just get feedback from the members???? They must take their cue from congress.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Quote:

Posted By TimB4 on 04/26/2015 3:00 PM

Posted By KerryL1 on 04/24/2015 2:32 PM
Tim's idea makes sense, Bonnie. Oh, but what if the Owners make whaco suggestions that will take a lot of your attorney's time, which'll cost you more. Hmmm, now I'm ambivalent about this.

That's why the Board, who should be using common sense, makes changes based on the comments. After those changes are made, then you send them to the attorney.

If we had sent this to committee of our older Members, I doubt very much many on the committee would even read our documents or (especially) the State Statues. We have a copy of our State Statues in our library.

What they would come up with would more than likely be their wishes. Last Sunday, I adked couple of the older members what they would like to see changed. It was like pulling teeth for them to tell may anything they wanted changed.
They finally told me two items. One we had already tried to amend because we were petitioned by the membership to amend an Article in the Master Deed. That failed. The other was an item that needed no vote. I just told them they could already do that. Sometimes when our members are told something the way it enters their minds is set in stone.

It hasn't helped that some previous Board Members more or less made up their own rules with little regard for our documents or the State Statues.

CyrstalB (Maryland)
Posts: 457

Posted:

Quote:

Posted By BonnieG1 on 04/27/2015 7:53 PM

Posted By TimB4 on 04/26/2015 3:00 PM

Posted By KerryL1 on 04/24/2015 2:32 PM
Tim's idea makes sense, Bonnie. Oh, but what if the Owners make whaco suggestions that will take a lot of your attorney's time, which'll cost you more. Hmmm, now I'm ambivalent about this.

That's why the Board, who should be using common sense, makes changes based on the comments. After those changes are made, then you send them to the attorney.

If we had sent this to committee of our older Members, I doubt very much many on the committee would even read our documents or (especially) the State Statues. We have a copy of our State Statues in our library.

What they would come up with would more than likely be their wishes. Last Sunday, I adked couple of the older members what they would like to see changed. It was like pulling teeth for them to tell may anything they wanted changed.
They finally told me two items. One we had already tried to amend because we were petitioned by the membership to amend an Article in the Master Deed. That failed. The other was an item that needed no vote. I just told them they could already do that. Sometimes when our members are told something the way it enters their minds is set in stone.

It hasn't helped that some previous Board Members more or less made up their own rules with little regard for our documents or the State Statues.

This reply only confirms, to me anyway, that you are putting the cart before the horse by paying an attorney for something(s) that have a strong possibility of never seeing the light of day. Of course you will get any and all "wishes". That is part of the process and can give the Board a good laugh too.

What is the percentage you need to pass any amendment, it seems like that is an irrelevant fact here.

PitA
Posts: 311

Posted:

Typically, an amendment to the Covenant/CCR/Declaration requires 2/3 affirmative OF THE TOTAL MEMBERSHIP.

There is no quorum requirement applicable.

e.g.

200 members would require 134 AYE votes

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By PitA on 04/28/2015 2:56 PM

There is no quorum requirement applicable.

Unless the voting must occur at a meeting of the membership called for that purpose.
However, if you have the 2/3 yea votes, you likely have a quorum.

PitA
Posts: 311

Posted:

Unless the voting must occur at a meeting of the membership called for that purpose.

IF you require a quorum to HOLD the vote you STILL require 2/3 (typically) of the ENTIRE membership to vote AYE regardless of the actual number at the meeting.

Most governing 'docs' are deliberately difficult to amend.

In general (let the debate begin) a quorum applies to CORPORATE issues NOT to Covenant issues.

GenoS (Florida)
Posts: 4,276

Posted:

The requirements for amending my HOA's governing docs all require a majority vote of the board, along with a 2/3 vote of all voting interests for the bylaws, and a simple majority of votes cast by members at a meeting in which a quorum has been attained. Seems kind of backwards that the bylaws are the hardest to amend, but that's the way they read. Amending the CCRs used to require a 2/3 vote of the members but that provision was changed to a simple majority some years back.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By PitA on 04/28/2015 4:44 PM

In general (let the debate begin) a quorum applies to CORPORATE issues NOT to Covenant issues.

Nothing to debate. You and I are saying the same thing. We are simply saying it differently.

BonnieG1 (Nebraska)
Posts: 1,186

Posted:

Except for one article in the Master Deed and parts of one section in the By-laws 2/3 of the members must agree to the amendment.

The one article in the Master Deed and parts of one section in the By-laws require 100% of the members to agree to before it passes. We are not going to put any item that needs 100% affirmative vote on the ballot unless we can amend the documents to require a lower percentage needed to amend these items. In my opinion that definitely would be a waste of time.

If we can and do amend the percentage to 75% we may then put the items on the ballot at the annual meeting in February. I certainly do not plan on calling another member meeting. We will let our members know well in advance and if we get too much negative input on any item, that item will not be put to a vote.

Some time a ago I mentioned I would like to amend our documents to allow a younger person to live in a unit as long as one person age 55 or older lived in the unit. I got much negative input on this idea so I dropped it.

What We may try to do is amend the Master Deed to read people living in the units must be at least 55 but allowing for a younger spouse. Currently the Master Deed states 57 allowing for a younger spouse. I don't think this will be hard to amend at all. I just don't think we can get 100% agreement and it is in the Article that at this time needs 100% agreement before it can be amended.