Recording Prior Amendments & Amendment Typos

CarissaM, from your other posts I see this is an FS 720 HOA. First, you are talking about how to present a proposed amendment to members, for them to vote on subsequently, correct? Second, you are talking about how the amendment (if passed by the membership) should ultimately be recorded, correct? My rough thoughts:

-- As you probably saw, the net has many sites discussing "how to amend governing documents." I have yet to find one that got into the nuts and bolts of how to present proposed amendments and what format the ultimate submission (of the approved, amended governing documents) to the county clerk should take.

-- I wish I could say that a "best practices" existed for how to proceed, but I think the only widely accepted best practice is to use an experienced HOA attorney for the amendment process.

-- "Restating" may be a better approach than simply amending? Also what about "revitalizing" (a big topic for FS 720 HOAs). Talk to the HOA attorney about these subjects.

-- From reading FS 720, and if not "restating" nor "revitalizing" I think the expectation by the legislature was that the original covenants remain recorded, and amendments are recorded subsequently.

-- To me, this seems to suggest the approach you described, both for presenting the proposed amendments and subsequent recording: Present the original covenants and then present the pages that are the proposed amended sections. (An attorney will clean this up some.)

-- I have seen HOAs/COAs present a matrix laying out the essence of what the original covenants said and what the proposed amendments do, section by section, then attaching the original covenants and the pages of proposed amendments. I think this is where creativity should strive to result in clarity, so owners understand what the subject of the vote is.

-- Off the top of my head, I think bona fide typos that do not have a material effect on the contractual terms can be ignored. But this of course begs the question of when a typo has a material effect. I think the example you gave is more than a typo and should be corrected via amendment, if possible.

-- One can google and turn up Florida HOA Declarations that have been amended or restated. Maybe locate ten; review closely; and do your proposed amendments using what these other HOAs did?

I think it's going to depend on the extent of the amendment and how much the association wants to spend for legal work.

Last time I looked in my area, an amendment cost us about $1000 - that included the original drafting, preparing the paperwork to send to homeowners (including ballots for voting) and final recording with the county. A full re-statement means many hours of legal work, and thus many $$$.

Our most extensive amendment was the one that brought us into compliance with the most current state law. There were a number of lines of things like "replace common area with common elements" but there were also a few more significant changes. Not terribly reader-friendly as far as comprehension goes, but it got the job done. And in this case no vote was necessary since compliance with current state law isn't open to debate.

Interestingly, a number of sites state that the Florida Supreme court has asserted (opined?) that only a Florida-licensed attorney may prepare amendments to governing documents. Here is a site that explains the Florida Supreme Court's position:

https://caselaw.findlaw.com/fl-supreme-court/1717326.html

Here are two sites that assert what I assert, regarding only attorneys being authorized to draft/prepare amendments to governing documents:

https://www.floridatoday.com/story/money/2019/12/28/hoa-legal-work-done-volunteers-may-engaging-unauthorized-law-pracice/2737439001/

https://www.floridacondohoalawblog.com/2017/05/30/changing-governing-documents-generally-requires-homeowner-approval/

The basis for this is that preparing amendments to a COA/HOA's governing documents is the practice of law and thus may only be done by a licensed attorney.

Granted if a person who is not an attorney is not being paid to prepare amendments, then the person is not practicing law no way no how.

The Florida Supreme Court appears to have homed in on paid HOA/COA managers drafting amendments and said, "No, not allowed. This is the unauthorized practice of law by HOA/COA managers." I believe it is something to which, for one, CAI manager training gives a bit of attention.

I would think much or all of this would be true in all 50 states of the U. S.

First, to clarify this is for prior amendments passed and included with a copy of the CC&R's as a subsequent document. So we give CC&R's, By-Laws, and Amendment 1 to homeowners.

So perhaps what I'm looking to do is "restate" the CC&R's to include the verbiage from the past amendment so it's clear? But that would definitely have to come from an attorney based on the responses, and he is expensive so we can just keep it two documents if that is the case.

Also, with regard to the proposed amendments, we did have the attorney create them, provide all the documentation and then we didn't get enough responses from the proposed amendments so those are dead in the water for now.

Like you I think, I am seeing that the only difference between "amending" and "restating" is a difference in scope.

Lots of changes argue for a restatement.

Else I agree about weighing the expense of putting a much cleaner version of the (amended) Declaration on record vs. leaving things as they are. I wouldn't sweat leaving things as they are. Title companies typically send an enormous package to prospective buyers. In Florida, this must include any amendments. A buyer is either going to wade through the dozens of pages of Declaration, and a number of additional pages of amendments, or not. Once disclosed, the HOA and seller did all it was required to.

Besides, who knows what is coming down the pike after the Surfside condo collapse? I know you all are not a condo, but I am thinking the chances are good that FS 720 is going to see some changes. Wait a few more years at least. Then see if any FS 720 changes might push your board over the edge such that the board thinks a full restatement is worth the money?

I'm probably saying the same thing, I'm thinking in terms of documents stored on a network. So we merged them together to provide "one document" The CC&R's with Amendment One and the Bylaws.

I guess in my head I assumed the attorney who prepared them would "merge them" and provide a copy of the Amendment that shows how they were restated with the change.

So when they removed the wood option for fences with the first amendment, I would have thought you'd go to that CC&R document and edit that section as amended to remove wood altogether. We have the original that says wood and you have to go to the amendment and see that they removed that.

But, if as you mentioned we can just put a note "see amendment one" they know 1) something has changed and 2) where to find it.

FS 720 repeatedly seems to distinguish the CC&Rs from amendments to same. Direct quotations from FS 720 include:

-- "The recorded declaration of covenants for a community and all duly adopted and recorded amendments"

-- "A copy of the declaration of covenants and a copy of each amendment thereto."

For the archives, FS 720.306 (1) (e) does have some specifics on the nuts and bolts of amending:
A proposal to amend the governing documents must contain the full text of the provision to be amended and may not be revised or amended by reference solely to the title or number. Proposed new language must be underlined, and proposed deleted language must be stricken. If the proposed change is so extensive that underlining and striking through language would hinder, rather than assist, the understanding of the proposed amendment, a notation must be inserted immediately preceding the proposed amendment in substantially the following form: “Substantial rewording. See governing documents for current text.” An amendment to a governing document is effective when recorded in the public records of the county in which the community is located.

Yes, Carissa, your attorney is. your best bet here. sounds like you're a little different in FL than in CA,, which I won't go into with more clarity since CA isn't your state.

I have seen on this forum the CC&Rs and the Bylaws being "the same document," so I guess that's different too. They cover very different topics and usually have different requirements for amending them with the Bylaws usually requiring less or sometimes even simple board approval.

I'll bet it's confusing, JohnC since a lot of owners think Bylaws means rules & regs. sigh.

Say, Carissa, did you once write that your HOA has no rules & regulations? If you don't ,do your CC&Rs say that rules may be made about certain things, e.g., parking, fencing, etc? You have definition of terms age the front of your CC&Rs, right? Is Rules, or Rules and
Regulations among them? One of our definitions in the front of our CC&Rs is "Governing Documents," which includes Rules & Regs.

So long as you do not contradict your CC&Rs or conflict with them, the Board, if permitted by your CC&Rs, can almost aways make rules. This requires no attorney in CA, and maybe not in FL. It also doesn't require owners' votes in CA--just a 28 comment period for owners own proposed rule changes.

You are correct, we don't have any rules and regulations. I have not found in our CC&R's any wording about the Association making rules or regulations so I'm not sure if that is an option for us. It would be helpful for defining some of the ambiguous declarations.

I did find out that Florida Building Code does consider a screen enclosure a wall with regard to pool safety so our CC&R's were most likely in the spirit of safety and we don't need to chase down a word change from "wall" to "screen" because it's already assumed in that manner. So that was helpful!

We only ever had a copy of our Covenants, Bylaws, Plus Rules and Regulations in a PDF Format. Several months ago I did a PDF to MS Word conversion and spent time cleaning up any conversion errors. I then went and over layed our Amendment Changes in addition and in the same place. I did say that this Word Version was a conversion from PDF and should not be considered a legal copy. Only the original PDF copy was a legal copy. That said, most not use the Word Converted copy. MS Word makes it so easy to search.

Glad to hear your screens are considered walls.

based on Augustin's citations, you may create rules. The one about crafting some dealing with your common areas seems most useful in your case.

Say, Carissa, don't your CC&Rs have a Section on architectural changes, etc.? Often they will say something like the Board may make rules or POLICIES about exterior homes color palettes, Fence heights, etc. Rules do give Boards an opportunity to clarify or elaborate on the CC&Rs.

Our CC&Rs give us a lot of latitude to make rules. So, for instance, Owners have exclusive use deeded parking spaces in our underground garage. The deliver started our original Rules & Regulations, which state cars and their attached menus may not hang over the physical parking space; that car alarms that go off frequently must be removed by owners, etc. Rules were added by board that say only one automobile and one personal shopping cart may be in each space.

Hmmm, I'm lost. It looks like your only need Board approval to make rules or guidelines. Oh, you're saying you Tired to change it to give the board some control, right?

Our t of curiosity, what does the section on Development Control say now?

I just feel that somewhere in you CC&Rs, probably, the board of your Assn. has powers to make policies or rule for guidelines without owners voting on every single little thing!

Say, is it possible something useful is in your Articles of Corporation?

Attached is the Development Control section to review so you can see what we have now.