Amending Bylaws and Declaration in the time of Covid-19

I don't have a frame of reference.

In my three neighborhoods, the "in good standing" status is virtually unchanged.

Some governing docs call for anyone voting to be in good standing.

What covenants need amending?

I don't think COVID makes a difference. This isn't something that happens overnight anyway - you need to look at what you'd like to change, your own documents to see how it's done, work with your attorney to make sure the law is followed, contact everyone to give them a chance to vote and then do it.

You say your state law changed to allow a percentage not all owners, not just those in good standing, but you may need to take another look at that statute. In some cases, changes to HOA law only apply to those established after a certain date. Depending on how long your film's been around, this law may not apply, so you'd be left with whatever's in your documents.

The only problem I see with trying to do this now is that people are preoccupied with their jobs, finances and so on, as you've said. That may mean this wouldn't get anyone's attention and the process would take even longer. The documents may still need to be amended for a number of other reasons, so it's ok to start the process. Take advantage of the time to review the issues carefully and ask homeowners for their take on what's needed, what no longer works and what can be tweaked. You can use the rest of the year for that and perhaps schedule a vote for next year.

As for delinquent ownwers, that usually hurts when it comes to board elections in that they can't run or vote. It doesn't always mean they can't vote to amend the documents, but if that's what your documents say and state law doesn't apply to your community, I would say the board should focus on working with them to keep money coming in so the bills continue to be paid. You can still commission an advisory committee to research the issue and make recommendations to the board. The expenses associated with amending the documents can keep until next year.

And if you're one of the delinquent homeowners, do what you can so you don't fall behind and propose a payment plan and stick to the terms. Your assessment should be considered essential expenses because if you don't pay, you risk a lot more in late fees and legal action that could put your home at risk for foreclosure.

Let's say you have an association of 100 units and 4 are "not in good standing".

If you use the 100 in good standing, then 60 yes votes would be required to amend.

If you have 4 not in good standing, then 58 are required.

If 50 are in good standing, my strong recommendation, MOVE!

Thanks for all the useful advice. The proxy that was sent out states only yes or no. There is no option to vote no on individual items. It is either all or nothing.

I don’t like the optics of all this. Most people are dealing with staying safe and family issues. I will talk more with my neighbors to hear their opinions. I may have to mount an email campaign. Door to door is hard in these times.

All of the proposed amendments seem more or less reasonable, but they absolutely should be voted on separately. You don't want to lose several good changes because one of them happens to be unpopular for some reason.

Did the association's attorney draft the proposed amendments? I'm asking because that combined proxy, together with the timing, seems amateurish and not well thought out. If your board drafted them, it's *very* likely that they are improperly worded, or may contradict other provisions in your governing documents. These things are written in legalese for a reason, and homeowners lack the knowledge and skill to do legal work. Poorly written governing documents will lead to conflict, inability to enforce your CC&Rs, and even lawsuits if people decide to fight something that doesn't seem lawful.

Albert,

Read your declarations on how to amend.

Typically, to amend a Declaration of Covenants requires x% of the membership NOT x% of members in good standing.

Take a look at your covenants and let us know what it actually takes to amend.

Note: Some of the items you identified can be in the Bylaws. Most of what you identified need to be in the covenants to withstand a court challenge.

Absolutely take Cathy's point wrt providing information to owners - in advance - in many ways - and more than once. This has the advantage of convincing everyone nothing is being hidden, and it actually gives them time to digest the information.

I agree. Two different type changes.

For what it's worth, my Declaration states that voting rights of delinquent owners must be suspended until their accounts are brought to $0. I re-read that and the section regarding amending our Declaration, and it appears that the voting rights suspension applies to that as well as to voting for directors at the annual meeting.

Our Declaration was reviewed by our attorneys when we first became a client (about 6 years ago), so this is consistent with state condo law.

So here is at least one example in one state where this is being done.

The bylaws and Declaration are “Amended and Restated”. It appears to be a template with some verbiage from the old documents. There are several new items in there including the Airbnb prohibition and the option to enforce a universal lease for anyone renting their home. There is language for the HOA to collect rent directly from the tenet. Not sure why that is there.

Sometimes the Declaration and Bylaws are combined into one document and registered together.
They are two documents (or if you wish, one document with two chapters/sections - covenants and bylaws).

Re Cathy comment,

The first thing our attorney does when an account is turned over for collection is to offer a payment plan with a startup fee.

The second thing, if the property is rented, is to notify the tenant to pay the attorney, with a copy of the letter to the owner. This is very effective.

Wish SC had the same.