Governing Documents Re-Write

Does a Florida HOA have to have an attorney do a simple "re-write" of Governing
Documents to make them more legible? No changes/additions/deletions to the Governing
Documents will me made. Is there a process by which the HOA can do this without
an attorney and Documents retain their "legal status?" If not, why not and, where
does it state this? Please, no opinions. I'm looking for something that states the
Association can do a "re-write" on their own without having to hire an attorney.
Again, a simple "re-write" for ease of reading...no changes to Governing Documents!

I know you didn't want opinions but you really need to consider the following:

The reason it's a good idea to work with an attorney on this because you want your documents to stand up on court if someone decides to challenge a part of it. It's always amazing how a few words or lack of words or the wrong words can and do jack people up. Why else do you think there are conversations all over this website asking what a certain portion of their documents really mean?

I understand wanting to save time and money, but these are LEGAL documents and you have to draft and change them properly - not to do that, in my opinion (for what it's worth) IS a breach of fidicuary duty on the part of the board. In fact, why not read this blog that should give you more things to think about:
https://counselorchronicles.com/rewriting-a-contract-in-plain-english-8028c85599d3.

Now, you probably won't find anything that specifically says a HOA can or can't rewrite governing documents on their own. However, you may be able to have a paralegal do this for you, as you want to keep the original intent and meaning of the documents. Then again, you may want to take Melissa's suggestion and look at the entire document (the board can charter a committee to review it) and see what you'd like to change. By working with an attorney, you may not need to change as much as you think - and if you tackle this now, you can have the ENTIRE document rewritten in plain English. That could save even more time down the road with future changes.

So talk to your association ATTORNEY - if you can hire a paralegal to convert the legalese, do that.

Well, not every issue in HOA land is going to be covered by a local or state law, and probably not a federal law. I do understand what you're saying, but it seems to me you're primarily interested in saving money and that shouldn't be the only reason you want to do it yourself.

As I said, there probably isn't anything that says this can't be done, but just because there may not be anything doesn't mean you should try this on your own. By the way, most of us aren't lawyers, so if you really, really want to know, you're going to have to keep poring over the state statutes and all the HOA cas law in Florida (get comfy, that could take a while) OR have your attorney do it (that's what they're for).

The fact you're even asking the question should be a hint that you're concerned that doing this or doing this the wrong way will create a lot of drama. I don't know why you don't seem to be listening to your intuition. In any case, you don't have to listen to me or anyone else, but getting legal advice off the internet can be a scary thing. So go ahead and do you - you seem to have made up your mind anyway, so go forth and rewrite. I just hope it works out for you.

-- Opinions follow, for the archives.

-- Is your community legally a HOA, a condo, or a cooperative?

-- If it is a HOA, then I see nothing in Florida statutes Chapter 720 "Homeowners Associations" or in Chapter 718 "Corporations Not For Profit" that explicitly requires the use of an attorney to re-write (or re-format) the governing documents.

-- On the other hand, Florida statute 720.3033 states inter alia that a director, "... will faithfully discharge his or her fiduciary responsibility to the association’s members." To me the "fiduciary responsibility" absolutely requires consulting an attorney on how to proceed here.

-- Else like Shelia wrote, statutes and case law do not cover every HOA issue that might arise.

-- To retain legal status, I think your HOA does need to record the new documents with the County, pursuant to Florida statute 720.301. Also I think a vote by the membership must be taken pursuant to Florida statute 720.306 (if this is a HOA). This is even though you are not fixing a typo; not correcting spelling; not changing any comma nor period; et cetera. The revision you propose will be word for word and punctuation mark for punctuation mark exactly the same as the original. And I think you have to have a proper vote to amend and then record this with the county.

-- If you do not want to go to the expense of recording and having a vote on the new document, then you could maybe prepare what you want but mark on each page, "Unofficial copy. Not guaranteed to replicate the officially recorded governing documents. Please go to the official governing document to double check what you read here." You could limit circulation to those who need it. Though no HOA attorney will work from an unofficial copy. Nor would a judge in a court of law admit such a copy for the purposes of interpreting the governing documents.

-- For the HOA statutes in Florida, see:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0720/0720PARTIContentsIndex.html

and

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0600-0699/0617/0617.html

I have seen multiple HOAs that have one copy of their documents that were long ago scanned into a PDF, or worse, a copy of a copy of the documents scanned into a PDF. These copies can be literally difficult to read because the type is small and blurred.

And if you go to the county for their copy, you'll get the same thing. Docs that were filed 20 years ago, created on some obsolete word processing software.

Nowadays, with Adobe Reader being free to all, and searchable PDFs being easy to create, I can see why an HOA might want to create a clean copy.

I didn't miss your point, Ian. We did something similar. A few years ago someone re-typed every document and every amendment to them. Then the amendments were "applied", in order, and re-typed again so that one only had to look at the ultimate re-typed version to see what the "current" documents say.

But these re-typed documents were not filed or recorded with the county. We treat them as internal and unofficial. Each of the 3 documents has a big disclaimer attached to it that says something like, "For legal purposes always refer to the original document and its amendments recorded with the county." We wrote up a summary list (it's a few pages long) that gives the actual name and date of each document and amendment along with the Official Records Book & Page number in the county records where the original may be located. Furthermore, we obtained PDF copies of everything recorded with the county - the originals and all amendments - and combined those into a single PDF for convenience.

The combination is useful to us. Not a word has been changed from the originals or the amendments. Nothing to my knowledge would prevent anyone from doing this as long as you don't try to pass them off as "original". They are re-typed and no matter how many times or how many people proofread them, there's always the chance that there's a typo or a mistake.

Now if we wanted to adopt them as "official" we'd consider doing so as "Re-stated" and, even without changing anything, still have the attorney review them and sign off on them.

I agree that even simple changes such as removing obsolete language that refers to the original Declarant should be shepherded by an attorney.

That's an excellent point and one of the reasons we did it: to make them searchable.

You can, but it will work out as well as doing your own surgery or your own dental work.

I'm a lawyer. It's almost always more expensive (in legal fees) for a non-lawyer to prepare a legal document and then for a lawyer to fix it, compared to a lawyer doing it the first time.

Yes, a re-write would have to reviewed by the HOA’s law firm, be passed as a Resolution by Members and Recorded. It would end up looking a lot like the original because of legal standards.

However, that is not what the OP intended, is it? What we should really be focusing on here is the legal risks of using a working copy of governing documents.

Not being a lawyer, I personally see no problem with reducing cognitive load as long as the disclaimers are run by your legal team.

I am bracing myself, though, for some backlash because reducing cognitive load could be a good tool for HOA leadership reform movements. It may have the power to change the leadership dynamics in your HOA, especially after given a few years to work. Current HOA support professions are highly ingrained and profitable, and they may resist with great force. If so, I would see that as a sign that the tool may be effective.

While an old post, the reason for a re-type (no changes) would be legibility and ability to do searches on. Good for posting on a website.

We have never did such so when we send a "raw"copy out to someone, we note the 4 changes made:

1. Removed Cumulative voting.
2. Proxies now allowed.
3. Annual Meeting on or before 4/15 versus a specific date like 1st Monday in April.
4. Quorum now 20% versus 50%.

We had the Declarant make the changes before turnover.

The question is would re-type require a "legal signature" saying they are identical?

Do you do surgery on yourself?

Then don’t use a lawyer, just as you wouldn’t use a doctor.

This is a disaster waiting to happen.