💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in

MarcO (California)
Posts: 2
Posted:
Hello All,

Our building is nearly 20 years old, and we think our CC&R documents and Bylaws are out of date with current standards. We're considering drawing up new documents, but a couple of questions have come up.

The cost we've been quoted by an HOA Lawyer is about $5,200. We're only an 8-unit building, so this is more than we want to spend.

Anyone have any other suggestions? How often do you update your CC&R / Bylaws?

Any lessons from people who have been through this before?

Thanks!

Marc
RogerB (Colorado)
Posts: 5,067
Posted:
Quote:
Posted By MarcO on 06/08/2007 12:40 PM

Anyone have any other suggestions? How often do you update your CC&R / Bylaws?
Any lessons from people who have been through this before?

Thanks! Marc

You could set up a Committee to draft the updates desired, have them approved by the members, and file them yourself. Example CC&Rs from recent HOAs in your state can be used as a guide. Same for By-laws which are much easier to draft and get approved. And to reduce concerns you can have an experienced HOA attorney review the changes to the CC&Rs.

We provide these services to our clients. Some chose to have an attorney review prior to approval and filing; others don't.
MarcO (California)
Posts: 2
Posted:
Thanks Roger,

What's a good source for getting an Example CC&R from my state? Can I get that from a county office or do I need to go another HOA in the area?

Marc
MelissaP1 (Alabama)
Posts: 13,836
Posted:
You may want to go to the Records department of your local COUNTY courthouse to view the version of CC&R's that are on record. The by-laws may be there as well but not necessarily. You will want to know what is considered the "legally" filed version before changing. Our HOA had about 3 versions floating around.It took us almost 2 years and about $2500 for our changes. That included legal costs and filing fees. The filing fees were quite high. You may want to ask what they are when you are at the Courthouse. I believe ours was about $700 to file altogether.

You don't necessarily need a lawyer to file but it's highly recommended you do so. It will be helpful. We had ours not only draft the changes, but help with contacting members who were non-responsive by door knocking. The lawyer was also able to guide us in knowing if the rules we wanted were okay and didn't violate other laws. There may be forms available to help you at an Office supply store like Staples. They will be in the "sell your own home" forms etc...

It can take a "special meeting" for the rules to be changed and adapted. I would recommend having a few meetings prior to an official adoption meeting. This is just to have the interested members review the existing rules and think about what changes they want to see. I would then invite the lawyer to a meeting when things are more organized. It will save money the less time you have the lawyer present and working on this issue. Try to limit their time if possible.

We had changes such as: HOA location address change, removing references to the developer/builder who have already turned over the HOA to the owners, eliminate the 2 vote system when developer was in charge, satellite dish allowances (fed regs don't allow banning dishes), and separate water meter issues. Things I wish we had changed was the requirement for the number needed to change the documents. We had to get 90% of the homeowner's to approve changes to the CC&R's if done before 20 years were up then drops to 75% after 20 years. It takes only 75% vote to change the By-laws. You should try to change BOTH CC&R's and By-laws at the same time. The CC&R's override the by-laws if in conflict.

Remember the purpose of the CC&R's and by-laws is to establish the rules the homeowner's feel they want their community to live by. If the owner's don't like trash cans in front of the house, then they can add that as a change or rule to the documents. We have an insane rule that ONLY white shades are to be in the front windows! So you can have some odd ball rules even if they are "pet peeves".

Former HOA President
BrianK1 (Colorado)
Posts: 54
Posted:
For now, I'm just working on getting By-Laws approved. What is the majority that we need to approve redone By-Laws, if the original copy of the By-Laws from the time of developement was never signed? We won't record the By-Laws with the County as there are only 20 units. The original unsigned By-Laws have a requirement of 75% of members to amend. Other By-Laws in my state, such as CypressGreens, only require a meeting and a majority of a quorum of members to amend.
MaryN (Virginia)
Posts: 125
Posted:
If you are changing the ccr's please be very, very careful with the process as well as the content. Our HOA only used an attorney to read over the covenant changes and he never looked at any of the controlling legal documents. He was a friend of the president and was FREE..and we got what we paid for. One of the things that the Board tried to change was the membership. We had no meeting. The paperwork was sent out and the pressure was on. A majority vote was required and the people on the covenant committee were relentless...phone calls, visits, etc...to the point where some homeowners told them they felt they were harrassed. They got vote and it's filed at the courthouse. What's filed there is different from the original mailout...one of the property owners refused to sign until wording was changed. Several of the members were not made aware of the changes. In Virginia it's the property owners, not the lot owners, that change the covenants..if you own 2 lots you get one vote, but if there are 10 people owning that lot..they get 10 votes..the owners listed were not correct and one lot is not part of the subdivision. I could go on and on with the process. A good attorney would have told them that to change the membership would mean..getting established as a new subdivion, new survey of the new subdivision, bring our road system up to state standards. A good attorney would have told them what is mailed out must be the same as that filed at the courthouse. A good attorney would have told them to check the deeds of each lot and made sure they had the correct owner. Thank God we have a new board! They will have to hire an attorney and have a declaration filed the the ccr's are not legal and list the reasons why. All of this could have been avoided if an experienced HOA attorney had been used.
Good luck,
Maryb
PaulM (Pennsylvania)
Posts: 1,347
Posted:
Brian: Your official documents, Declaration & Bylaws, will state what percentage of eligible residents (to vote) is required to make a change to the Bylaws.

Not sure I understand what you mean...'original copy of the By-Laws from the time of developement was never signed? .. not signed by the developer?? and also, you ...'won't record the By-Laws with the County as there are only 20 units'

For Declaration & Bylaws documents to be legal, they must be filed with the state/county offices. Your documents themselves should state (first or last page) the date they were officially filed. You cannot go by other associations which may 'require a meeting and majority of quorum' to amend documents. You have to adhere to your community's documents and follow accordingly.

BrianK1 (Colorado)
Posts: 54
Posted:
The Articles of Incorporation and Declaration of CC&R's have, of course, been recorded with the State and County for many years. The By-Laws have never been recorded, and are not required to be recorded in my state; it is optional. In our records, we have printed pages of By-Laws that were drafted by the same attorney who was the incorporator attorney, and who drafted the Articles of Incorporation. Those By-Laws are not signed by anyone, including the first secretary, or a notary public. The situation is similar to that in topic #18648. I have reviewed the archived minutes that still exist, from 1994 to present, and none of them approved any By-Laws. We are not exactly amending the By-Laws, we are getting them approved for the first time ever, although quite late, so I had to make some changes to what was originally drafted years ago.

The Declaration, of course, states that a majority of 75% of members is required to amend it (90% before 20 years has passed), however, section 8 of Colorado SB 05-100 says that no more than a 67% majority may be required to amend Declarations. Nowhere in our Articles of Incorporation or the Declaration is it stated what majority is required to approve or amend By-Laws. In the discussion above, RogerB says that example CC&Rs from recent HOA's in my state can be used as a guide, and the same for By-Laws which are much easier to draft and get approved. That's what I'm doing, but for now just the By-Laws.

The possibilities as I can determine, are 100% of members, or 90%, or 75%, or 67%, or a majority of members of a quorum at a meeting. As far as I can tell, the latter is all we need, even though the old unsigned, unapproved draft of By-Laws require 75% to amend. What do you think?
PaulM (Pennsylvania)
Posts: 1,347
Posted:
BrianK:
A community's Declaration, Bylaws, CC&R documents do not require signatures from a Community Board member/Treasurer to be valid. These are documents that are recorded with the state/county and follow the state law which govern
communities.

You state...'In our records, we have printed pages of By-Laws that were drafted by the same attorney who was the incorporator attorney, and who drafted the Articles of Incorporation...'

Some STATES do not require bylaws to be recorded, however, official recording at the COUNTY CLERK office is usually required. IMO, you need to check in with the attorney office who 'drafted' these originals, and seek his assistance on going forward. This sounds like an unusual situation and you may be entering an area which requires legalities of which you are not aware. Cover all bases and CYA!

BrianK1 (Colorado)
Posts: 54
Posted:
As suggested above, I'm using the By-Laws from recent HOA's as a guide. If my communities' By-Laws do not require a signature from a Community Board member to be valid, why are the By-Laws for Cypress Greens, for example, signed by the Secretary? Why does our old By-Laws draft have a place for the Association's Secretary to sign it?

If official recording of By-Laws at the County Clerk office is usually required, why does MelissaP1 say above that the By-Laws may be there but not necessarily, and says elsewhere not to panic if I don't have my by-laws filed anywhere other than the HOA office, and that most likely that is exactly where they need to be? Why does RogerB say in this forum that In Colorado By-Laws do not have to be filed outside the HOA? If our By-Laws are not recorded at the County Clerk office, is that a mistake that should be rectified? Should I seek assistance with the attorney's office to determine if our By-Laws must be recorded with the County Clerk?

At the top, MarcO says that $5,200 is more than they want to spend. If the answer to our questions is to seek the assistance of an experienced HOA attorney for everything, then this forum ceases to be very useful for such matters. Before approval by the members, we will take our revised By-Laws to an attorney to be checked over, after we have done all we can do on our own.
MelissaP1 (Alabama)
Posts: 13,836
Posted:
By-laws are NOT required to be file in every state. In Alabama you can file them but they aren't required. It's smart to do so IMO but not necessary. By-laws are more or less the daily rules the HOA follow. It's the rules that the HOA creates themselves to live by and can be modified at their will with majority vote. It's much easier to modify by-laws than CC&R's.
CC&R's effect the homeowner's Deed. By-laws effect the homeowner's culture. Both are enforceable. However, I believe it is in the CC&R's where the foreclosure/liens rights are maintained.
Keep in mind that Fines are NOT enforceable or subject to liens/foreclosures in many states. Basically, you can't lien someone for leaving their garbage out. I have a feeling this may be part of the reason for your by-law change.
I would need more information on what changes your looking to do before being able to give better information. We are NOT a legal source of information here. Just experienced HOA members who's learned a lesson or two and willing to help. NEVER take any information here as a legal source.

Former HOA President
BrianK1 (Colorado)
Posts: 54
Posted:
The changes are mostly done except that there is one Article entitled MORTGAGES which isn't included in any other recent By-Laws that I've looked at. This Article requires that owners who mortage their lots to provide mortgage information to the Association such as the name of the Mortgagee, and that this information shall be maintained in a book entitled "Mortgages of Lots". The Article also requires the Association to report unpaid assessments to the Mortgagee upon request, and gives the right of any first Mortgagee to inspect the books, receive an annual financial statement, and send a representative to Association meetings. The CC&R's also have a section for notifying a first Mortagee about unpaid assessments or other defaults upon request, so that part of the MORTGAGES Article in the old By-Laws draft is covered. I don't know whether to keep this MORTGAGES Article in the revised By-Laws or remove it entirely. There is no book entitled "Mortgages of Lots" in the HOA's records. Other recent By-Laws that I've looked at, including one in my state, don't have a separate Article just for mortgages; why not?
RogerB (Colorado)
Posts: 5,067
Posted:
Brian, following is a porttion of a Declaration (I'm not privy to post a link). I would consider including something similar. Key item related to required notification is "Eligible Holders".
______________________________________________________________________________
ARTICLE TWELVE: FIRST MORTGAGEE PROVISIONS

The following provisions are for the benefit of holders, insurers, or guarantors of holders of first mortgages recorded against Lots within The Properties. To the extent applicable, necessary, or proper, the provisions of this ARTICLE TWELVE apply to both this Declaration and to the Articles and Bylaws of the Association.

12.1 Notices of Action. A holder, insurer or guarantor of a first mortgage who has delivered a written request to the Association containing its name, address, the legal description and the address of the Lot encumbered by its mortgage shall be considered an “Eligible Holder” hereunder and shall be entitled to timely written notice of:
(a) any condemnation loss or any casualty loss which affects a material portion of The Properties or which affects any Lot on which there is a first mortgage held, insured, or guaranteed by such Eligible Holder;

(b) any delinquency in the payment of assessments or charges owed by an Owner of a Lot subject to the mortgage of such Eligible Holder, where such delinquency has continued for a period of sixty days; provided however, notwithstanding this provision, any holder of a first mortgage, upon request, is entitled to written notice from the Association of any default in the performance by an Owner of a Lot of any obligation under this Declaration or Articles or Bylaws of the Association which is not cured within sixty days;

(c) any lapse, cancellation, or material modification of any insurance policy or fidelity bond maintained by the Association; or

(d) any proposed action which would require the consent of a specified percentage of Eligible Holders.

12.2 Other Provisions for the Benefit of Eligible Holders. To the extent permitted under Colorado law, the approval of fifty-one percent of the Eligible Holders of mortgages on Lots subject to Eligible Holder mortgages shall be obtained before taking the following actions:

(a) a decision by the Association to establish self-management when professional management had been required previously by an Eligible Holder;
(b) restoration or repair of The Properties (after a hazard damage or partial condemnation) in a manner other than that specified in this Declaration;
(c) any action to terminate the legal status of The Properties after substantial destruction or condemnation occurs.

12.3 Amendment to Documents/Special Approvals.
(a) The consent of Owners who are entitled to cast at least sixty-seven percent of the votes in the Association allocated to each Class of Membership and the approval of at least sixty-seven percent of the Eligible Holders of mortgages recorded against Lots within The Properties subject to Eligible Holder mortgages shall be required to commence any action to terminate the legal status of The Properties for reasons other than substantial destruction or condemnation of The Properties.

(b) The consent of Owners who are entitled to cast at least sixty-seven percent of the votes in the Association allocated to each class of Membership and the approval of at least fifty-one percent of the Eligible Holders of mortgages recorded against a Lot within The Properties subject to Eligible Holder mortgages shall be required to add to or amend any material provisions of this Declaration or the Articles or Bylaws of the Association which establish, provide for, govern, or regulate any of the following:
(i) voting rights;
(ii) assessments, assessment liens, or subordination of such liens;
(iii) reserves for maintenance, repair and replacement of property maintained by the Association;
(iv) responsibility for maintenance and repairs;
(v) reallocation of interests in the property maintained by the Association or the rights to its use;
(vi) boundaries of any Lot;
(vii) expansion or contraction of The Properties or the addition, annexation or withdrawal of property to or from The Properties;
(viii) insurance or fidelity bonds;
(ix) leasing of Dwelling Units;
(x) imposition of any restrictions on an Owner’s right to sell or transfer his or her Lot or Dwelling Unit;
(xi) any provision that expressly benefits the Eligible Holders.

(c) If the Properties have been or are to be approved by the Federal Housing Administration and/or Veterans Administration, then so long as there are Class B Memberships, the following actions will require the prior approval of the Federal Housing Administration and/or the Veterans Administration; (a) amendment of this Declaration, (b) amendment of the Articles of Incorporation or the Bylaws of the Association, (c) annexation of additional properties to this Declaration, and (d) merger, consolidation, or dissolution of the Association.

12.4 Special FHLMC Provisions. So long as required by the Federal Home Loan Mortgage Corporation, the following requirements apply in addition to and not in lieu of the foregoing: unless at least sixty—seven percent of the First Mortgages (based on one vote for each first mortgage owned) or Owners who are entitled to cast at least sixty-seven percent of the votes of each Class of Membership have given their prior written approval, the Association is not entitled to take any of the following actions:
(a) by act or omission seek to abandon, partition, subdivide encumber, sell, or transfer the common property owned directly or indirectly, by the Association for the benefit of the Owners. The granting of easements for public utilities or other public purposes consistent with the intended use of the common property by the Association is not a transfer in the meaning of this paragraph;

(b) change the method of determining the obligations, assessments, dues or other charges that may be levied against an Owner;

(c) by act or omission change, waive, or abandon any scheme of regulations or their enforcement pertaining to the architectural design or the exterior appearance of Dwelling Units, the exterior maintenance of Dwelling Units, the maintenance of the common property party walks, common fences and driveways, and the upkeep of lawns and plantings in The Properties;

(d) fail to maintain fire and extended coverage on insurable common property on a current replacement cost basis in an amount at least one hundred percent of the insurable value (based on current replacement cost) ; and

(e) use hazard insurance proceeds for losses to any common property for other than the repair, replacement or reconstruction of such common property.

Should the Federal National Mortgage Association or the Federal Home Loan Mortgage Corporation subsequently delete any of their respective requirements which necessitate the provisions of this Paragraph or make any such requirements less stringent, the Board of Directors, without approval of the Owners or First Mortgagees, may cause an amendment to this Paragraph to be recorded to reflect such changes.

12.5 Books and Records. Owners and their mortgagees shall have the right to examine the books and records of the Association at any reasonable time at the office of the Association and upon reasonable notice. Copies are available at reasonable cost.
BrianK1 (Colorado)
Posts: 54
Posted:
Quote:
Posted By RogerB on 06/08/2007 1:27 PM

You could set up a Committee to draft the updates desired, have them approved by the members, and file them yourself. Example CC&Rs from recent HOAs in your state can be used as a guide. Same for By-laws which are much easier to draft and get approved. And to reduce concerns you can have an experienced HOA attorney review the changes to the CC&Rs.

We reach quorums via proxies. To get the updated by-laws approved, must I include a copy of the new updated by-laws with the proxy letters that I mail out?
RogerB (Colorado)
Posts: 5,067
Posted:
Brian,
Yes it is best to send copy of the proposed amendments to the By-laws out with the notice of meeting and proxy. You could also provide a ballot for absentee voting or a directed proxy to require the person representing you to vote in a specific manner.

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

  • ✓ Ask follow-up questions
  • ✓ Share your experience
  • ✓ Get expert advice
  • ✓ Access 350,000 discussions
Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here