HOA Amendment Process

Thought you'd all be interested in reading this article written by a well known AZ HOA attorney.

I was not aware of the legal definition of "acknowledge". I find this very interesting.

HOAs must know amendment processes
2 commentsby Curtis Ekmark - Apr. 25, 2009 12:00 AM
The Arizona Republic
Associations should be very careful when amending their documents.

First, there may be a different amendment process for each particular document. Thus, one must not assume that the amendment process with respect to the declaration is the same as the amendment process with respect to the bylaws. There is no substitute for reviewing each particular document.

The exact wording of the amendment provision must be analyzed very carefully. For example, there is a difference between "75 percent of the owners" and "owners of 75 percent of the lots." If a person owns multiple lots, he or she would still only have one vote if you are counting owners, but he or she would have multiple votes if you were counting lots.
Also, be aware that certain terms may have a legal meaning.

For example, if the owners need to "acknowledge" the amendment, then the signatures need to be notarized. We have seen several associations spend a significant amount of time collecting signatures only to find out later that the amendment was not valid because the signatures were not notarized.

In summary, amending the declaration may, in some cases, make the community a better place.

However, before embarking on the amendment process, the association should fully understand the process and the legal ramifications.

Attorney Curtis Ekmark of Ekmark and Ekmark in Scottsdale focuses on association law. He is president of the Scottsdale Council of Homeowners Associations and vice president of West Valley Homeowner Associations.

Posted By MaryA1 on 4/26/2009 1:27:49 PM

For example, there is a difference between "75 percent of the owners" and "owners of 75 percent of the lots." If a person owns multiple lots, he or she would still only have one vote if you are counting owners, but he or she would have multiple votes if you were counting lots.

WOW, I would have never realized the difference in interpretation! But after reading both statements together I can see the difference.

Also, our Declarations amendment section does not state "acknowledge" by owners...it states:

"duly executed by the requisite number of members required to effect such amendment"

Do you think "duly exected" mean notarized?

Barb

In my opinion, "duly executed" simply means executed in accordance with the governing documents, i.e., state law, covenants & bylaws.

Our covenants state that the personal obligation of the owner to pay an assessment shall remain the personal obligation and shall not pass to his successors in title (other than as a lien on the land) unless expressly assumed by them.

Mary writes:

>>>I just hate all the legal mumbo-jumbo, don't you?<<<

Esq., Jr.:

Statements like that could get your membership in the JBA terminated. As Christian (Mel Gibson) said to Bligh (Tony Hopkins) in "The Bounty" after Bligh queries about the "rumblings" amongst the crew following their departure from Tahiti-nui:

"It's not a threat. It's a warning."

I don't see how the members are paying equally when they are subsidized by the HOA... what happens when the reserve fund runs out?

I hate legalese too. It's like a never ending quest to tie up loose ends. Every time a law is written, there is always several loopholes that are exploited and need to be fixed!

Ellen,

We go a few steps further.

Our docs make the buyer AND seller liable for unpaid dues or assessments, plus we have a Confession of Judgment clause (printed in all CAPS!) in which the owner gives us their Power of Attorney to collect however we choose.

So, yes, these things are easily resolved at closing.