In VA -- Governing Doc Rewrite -- Cost- How

-- I think the OP's Board needs to study the following section from the Virginia Property Owners' Association Act:
55.1-1829. Amendment to declaration and bylaws; consent of mortgagee
A. In the event that any provision in the declaration requires the written consent of a mortgagee in order to amend the bylaws or the declaration, the association shall be deemed to have received the written consent of a mortgagee if the association sends the text of the proposed amendment by certified mail, return receipt requested, or by regular mail with proof of mailing to the mortgagee at the address supplied by such mortgagee in a written request to the association to receive notice of proposed amendments to the declaration and receives no written objection to the adoption of the amendment from the mortgagee within 60 days of the date that the notice of amendment is sent by the association, unless the declaration expressly provides otherwise. If the mortgagee has not supplied an address to the association, the association shall be deemed to have received the written consent of a mortgagee if the association sends the text of the proposed amendment by certified mail, return receipt requested, to the mortgagee at the address filed in the land records or with the local tax assessor's office and receives no written objection to the adoption of the amendment from the mortgagee within 60 days of the date that the notice of amendment is sent by the association, unless the declaration expressly provides otherwise.

B. Subsection A shall not apply to amendments that alter the priority of the lien of the mortgagee or that materially impair or affect a lot as collateral or the right of the mortgagee to foreclose on a lot as collateral.

C. Where the declaration is silent on the need for mortgagee consent, no mortgagee consent shall be required if the amendment to the declaration does not specifically affect mortgagee rights.

D. Except as otherwise provided in the declaration, a declaration may be amended by a two-thirds vote of the lot owners.

E. An action to challenge the validity of an amendment adopted by the association may not be brought more than one year after the amendment is effective.

F. Agreement of the required majority of lot owners to any amendment of the declaration adopted pursuant to subsection D shall be evidenced by their execution of the amendment, or ratifications of such amendment, and the same shall become effective when a copy of the amendment is recorded together with a certification, signed by the principal officer of the association or by such other officer or officers as the declaration may specify, that the requisite majority of the lot owners signed the amendment or ratifications of such amendment.

G. Subsections D and F shall not be construed to affect the validity of any amendment recorded prior to July 1, 2017.

-- Consider questioning the law firm about how this would work for your HOA. Studying the Declaration will be necessary to apply the statute section correctly.

-- I have seen the clause to which the OP refers in other governing documents nationwide. The net has much discussion of such clauses and how they can hold up an amendment; just google for many a law firm's and management company's commentary on these clauses and how HOAs are often stuck with dealing with lenders for amendments to the Declaration.

-- Always put out to bid any contract over say $10,000. Meaning get another law firm's opinion.

-- I am not in Virginia. I am posting for the archives.

BH5, I am studying 55.1-1829. Like what your first post suggests, and to get the best price possible, so far these are my ideas about how to proceed:

-- Plan to ask a few law firms whether the Declaration "expressly provide" that the 60-day rule in the statute does not apply. So far, I think the 60 day rule does apply. I am just a layperson and not an attorney. There's a reason attorneys have to spend three years in law school and pass a bar exam.

-- Identify which of the 540 homes currently have a mortgagee who has provided "a written request to the association to receive notice of proposed amendments to the declaration."

-- Ask the HOA manager what it will cost the HOA for the HOA manager to check the mortgagee addresses on file with the land records office and the tax assessor's office (per the statute section).

-- USPS charges about $7 for each certified mail, return receipt requested letter. Figure about $4000 for the USPS cost. I would not send a letter to the mortgagees any other way.

-- The printing cost is going to be a lot for this mailing to mortgagees. I think the entire Declaration with its revisions will have to be mailed. The attorneys will know how this has to be presented.

-- Mailing to owners (not mortgagees) hopefully can be done in a concise way.

-- Mostly I expect a non-response from mortgagees within the 60 day period. This is where the statute kicks in. Legislators maybe wrote this statute section specifically because of non-response problems from mortgagees. Bank staff are notoriously remiss and unqualified in my experience.

-- Ask the law firm if the HOA can do the mailing. Tell the law firm that the HOA would just as soon roll the dice that any mortgagee representative who signs xyz document is who he/she says he/she is.

-- Note that the statute section gives all a one year period to challenge the validity of an amendment. This is to the HOA's advantage.

-- Many threads here discuss the pitfalls of presenting many revisions to owners vs. just a few. Your HOA may want to stick with revisions that amount to boilerplate and do not really affect their rights.